Kentucky settlement won’t block action here

Even though the family of a patient who died of surgery complications settled a Kentucky personal injury claim against providers in that state, the family can still sue Virginia providers in a Virginia court for wrongful death.

The claim is not barred by the Kentucky recovery although the injury was alleged to be the same: untreated mesenteric ischemia, a condition which restricted blood supply to the bowel, the high court said.

The justices reversed a Tazewell County judge who had dismissed the Virginia lawsuit. The trial judge said the Virginia statute requires a choice of remedies – personal injury or wrongful death – and the estate had made its choice with the injury lawsuit in Kentucky.

The Supreme Court’s June 4 opinion is Green v. Diagnostic Imaging Associates PC (VLW 020-6-047).

Missed diagnosis alleged

The patient – Oneida Stiltner Green – first went to doctors in Virginia. She came to Clinch Valley Medical Center in Richlands with nausea, vomiting and abdominal pain on May 24, 2013. She was admitted, given a CT scan and discharged four days later.

Her symptoms continued and she went to Kentucky doctors at Pikeville Medical Center. Only after transfer to the University of  Kentucky Medical Center was she diagnosed with ischemic bowel due to occlusion of her superior mesenteric artery. She underwent an extensive bowel resection on June 4. She lived less than three months before succumbing to complications of the surgery.

Green’s husband, Lewis, filed wrongful death and personal injury actions in both Virginia and Kentucky courts claiming medical professionals in both states failed to identify and treat the ischemia while her bowel was still salvageable.

Lewis Green dismissed all claims except a personal injury claim against Pikeville Medical Center and then settled with that facility for an undisclosed amount.

In Virginia, Green sued a radiologist, a surgeon, their practice groups and the Richlands hospital. He alleged both wrongful death under Va. Code § 8.01-50 and a survival action for personal injury under Code § 8.01-25.

Later, an amended complaint dropped the hospital from the case and dropped the survival claim, leaving only a wrongful death claim against three doctors and two practice groups.

Virginia case dismissed

Tazewell County Circuit Judge Richard C. Patterson concluded Code § 8.01-56 barred the wrongful death action. He said Virginia law allows for only one recovery for the same injury. In Patterson’s view, Green had elected his remedy with the Kentucky personal injury action.

John T. Jessee of Roanoke, counsel for the surgeon and his practice, made the same point in oral argument at the Supreme Court Feb. 27.

“This court and our General Assembly have said there is either a recovery for personal injury damages or a recovery for wrongful death,” Jessee said.

But the Supreme Court disagreed that selection must be made at the outset.

“Code § 8.01-56 is not an election of remedy statute,” wrote Justice S. Bernard Goodwyn for the court. Determining which action to bring “is not a matter of choice, but rather it is dictated by the facts regarding causation of an injured person’s death,” the court said.

A plaintiff need not decide before trial, the justices said.

“A plaintiff may bring a personal injury action and assert a wrongful death action in the alternative, if the plaintiff is unsure of his ability to prove that the decedent’s death resulted from the decedent’s injury,” Goodwyn wrote.

But that plaintiff can only recover on the claim that is supported by the record, the court said.

As a matter of law, the settlement of the Kentucky personal injury claim did not operate as an election of remedies by Green in the Kentucky case, the court said.

Other theories

The court rejected other theories cited by the trial judge. The court agreed with Green that claim-splitting, double recovery and judicial estoppel were inapplicable.

The rule against claim splitting did not fit because Green was not bringing successive suits against the same defendants, the court reasoned. The justices agreed that Green would not receive a double recovery because the circuit court could reduce any Virginia judgment by the amount of the Kentucky settlement.

In fact, E. Kyle McNew of Charlottesville argued for Green that the Virginia defendants suffered no prejudice by the Kentucky settlement.

“What happened in Kentucky can only help them by virtue of providing a credit against any of their potential liability,” McNew told the justices at oral argument.

Finally, judicial estoppel did not apply because the parties are different, the court said.

The court reversed dismissal of the death case against the Virginia providers and remanded the action for further proceedings. One justice said at oral argument he predicted a “Green II” appeal to resolve a potential dispute over the measure of damages.

Daniel T. Sarrell of Richmond represented two defendant physicians and a radiology practice. None of the counsel was available for comment after the Supreme Court ruling.