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Jury allowed to consider both death and survival claims

The plaintiffs’ bar is the winner today in a case where the defense sought to force a plaintiff to elect between a personal injury claim and a wrongful death claim for the estate of a man who died after acquiring an infection at the defendant hospital.

Because Virginia law allows only one recovery for an injury, the patient’s family could win damages either for the man’s personal injuries or his death, but not both.  Circuit courts have been inconsistent in ruling on when and under what circumstances the plaintiff has to chose his path.

The court decides today in Centra Health, Inc. v. Mullins that a plaintiff in such a case does not have to elect between the two remedies until there’s enough evidence in the record to show that the injuries and death resulted from the same cause, and that point may not come until the end of a jury trial.

Defendants in such cases, often hospitals and nursing homes, have argued that it’s unfair to allow the jury to hear evidence of both physical suffering by the patient and emotional loss by the family when they can award damages for only one of those elements.  Writing for the full court, however, Justice Lawrence L. Koontz Jr. said the remedy is bifurcation of the trial into separate proceedings for determining liability and damages.

In the case at bar, the trial court allowed the jury to hear all the evidence and then decide which recovery the family was entitled to.  The jury rejected the wrongful death claim and awarded $325,000 for personal injury.  The judgment in that amount is affirmed today.

By Peter Vieth

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