Virginia Lawyers Weekly VA Lawyers Weekly
A medical malpractice survival action arose from the same “cause of action” as a previously nonsuited wrongful death claim, so the statute of limitations does not bar the new lawsuit, the Supreme Court ruled Friday.
The decision reverses the trial court’s dismissal of the Richmond Circuit Court suit in McKinney v. Virginia Surgical Associates PC.
The patient sued over his medical care before his death. After his passing, his widow was allowed to amend the suit to a wrongful death action. Later, however, when the evidence failed to link the alleged malpractice to the patient’s death, the widow took a nonsuit.
The new survival action, alleging personal injuries suffered by the patient before his death, was filed more than two years after the medical care at issue. The trial court held the new suit was barred by the statute of limitations.
Reversing, the Supreme Court held there was but a single cause of action: the alleged medical malpractice resulting in injury. Since the second suit was brought within six months of the nonsuit, the action was timely, the court said. The court reversed dismissal of the lawsuit and remanded the case for further proceedings.
