Survival Action or Wrongful Death In Virginia

Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2d 708 (2009)

IN THE SUPREME COURT OF VIRGINIA

CENTRA HEALTH, INC.,
T/A LYNCHBURG GENERAL HOSPITAL
v.
LEONARD J. MULLINS, ADMINISTRATOR
OF THE ESTATE OF LEONARD MULLINS,
DECEASED, ET AL.

Record No. 080008
Decided: January 16, 2009

Present: All the Justices

In a medical malpractice action, the circuit court did not err in refusing to require the administrators of a decedent's estate to elect between alternative claims for wrongful death and a survival action for personal injuries to the decedent, both of which allegedly arose from the same acts of medical negligence. Election between these remedies was required only at a time when the record sufficiently established that the personal injuries and the death arose from the same cause. In this case there was no appropriate time prior to trial at which compelling an election would not have prejudiced plaintiffs and, consequently, unfairly benefited the defendant. Further, the circuit court did not err in denying the defense motion to strike the evidence on the survival claim in subsequently confirming the jury's verdict in favor of the administrators on that claim, or in rejecting claims that the damage award was improper. The judgment is affirmed.

    Torts — Medical Malpractice — Wrongful Death — Survival Action for Personal Injuries — Election of Causes of Action and Remedies — Appropriate Time after Discovery to Compel Election — Claims Contested by Defendants — Appropriate Damage Factors — Jury Instructions on Damage Awards — Excessive Verdicts — Awards Adequately Supported by the Record — Code § 8.01-21 — Code § 8.01-25 — Code § 8.01-50 — Code § 8.01-56

    An 84-year-old patient was admitted to a hospital for treatment of a broken hip. As a result of negligence by hospital staff in failing to remove a catheter as ordered and failure to recognize and report the development of a urinary tract infection, the patient was released after the hip repair surgery, but readmitted to the hospital the following day for treatment of the continuing urinary tract infection, which had progressed into sepsis, and he remained hospitalized until his death several days later. The administrators of his estate brought suit, asserting a claim for wrongful death and an alternate survival claim for the personal injuries sustained by the patient prior to his death as a result of the hospital's negligent treatment resulting in the urinary tract infection and its attendant complications. The defendant denied negligence and asserted an affirmative defense of intervening causation to the wrongful death claim. At all stages of the proceeding — before and during trial — the hospital [Page 60] made motions requesting that the circuit court compel the administrators to elect between the survival and wrongful death causes of action. The court overruled these motions, and specifically instructed the jury on the alternative theories. A verdict form directed the jury to complete only one of the two sections, and the judge instructed the jury on how to indicate the absence of liability as well as the alternative liability options. The jury returned a verdict for plaintiff on the survival claim only, setting damages at $325,000. After post-trial motions and a further hearing, the circuit court entered a final judgment on the jury's verdict awarding damages in accord with the verdict. The hospital appeals.

1. A prevailing party that comes before an appellate court with a jury verdict approved by the trial court stands in the most favored position known to the law. Accordingly, on appeal, the evidence and all reasonable inferences deducible therefrom are viewed in the light most favorable to the prevailing party.

2. Code § 8.01-25, which governs survival of causes of action that accrue during a decedent's lifetime, provides that every cause of action — whether legal or equitable — which is cognizable in the Commonwealth of Virginia, shall survive the death of the person in whose favor the cause of action existed. It also provides that if the cause of action asserted by the decedent in his lifetime was for a personal injury and such decedent dies as a result of the injury complained of with a timely action for damages arising from such injury pending, the action shall be amended in accordance with the provisions of § 8.01-56.

3. Code § 8.01-50 authorizes actions for wrongful death of a decedent.

4. Code § 8.01-56, which in part governs the maintenance of a pending personal injury action as a survival action following the death of the plaintiff, provides that if a person who has brought an action for personal injury dies pending the action, the action may be revived in the name of his personal representative. If death results from the injury for which the action was originally brought, the pleadings shall be amended so as to conform to an action under § 8.01-50, and the case proceeded with as if the action had been brought under such section. This Code section also provides that, in such cases, there shall be but one recovery for the same injury.

5. Prior case law has held that there is no conflict between Code §§ 8.01-25 and 8.01-56 because these statutes were enacted to extend the application of Code § 8.01-50 to include cases not yet filed or pending at the time of the decedent's death, whereas Code § 8.01-21 codified the common law rule that a verdict in a case where a party subsequently dies stands because the case has been completely litigated.

6. The question whether an election of remedy can be required arises only in a case where the plaintiff brings a survival action and wrongful death action together in a single lawsuit after the death of the decedent. The mandatory requirement for the conversion of the personal injury claim into one for wrongful death applies only in those cases in which the facts establish that the “decedent die[d] as a result of the injury complained of,” as provided in Code § 8.01-25, and “death resulted from the injury for which the action was originally brought,” as provided in Code § 8.01-56. [Page 61]

7. Under Code § 8.01-56 there shall be but one recovery for the same injury for which both personal injury and wrongful death actions might be brought by the plaintiff. Thus, if the injuries cause death, the recovery must be sought under Code § 8.01-50, the wrongful death statute.

8. Nonetheless, a plaintiff is not constrained to bring only a wrongful death action if causation is in doubt, and in choosing to file a personal injury action, the plaintiff only has to prove the elements of that claim to recover damages. Moreover, the plaintiff is entitled to the opportunity to prove those elements. The trier of fact would have to resolve conflicting testimony regarding the cause of the decedent's death.

9. Implicit in the direction that an election will occur at an appropriate time after discovery has been completed is the understanding that the plaintiff ought not be compelled to make the election without a full opportunity to develop its case.

10. There can be but one recovery on the two claims asserted in this case. The potential for prejudice from permitting a plaintiff to present evidence in support of a survival claim and a wrongful death claim when the issue of causation is disputed — the possibility that in a jury trial the jury could conflate the differing elements of damages from each claim in rendering a single verdict — can be obviated by requesting that the trial be bifurcated into separate proceedings to determine liability and damages. Indeed, in a case where there is any doubt as to when compelling an election would be proper, bifurcation is the most practical means to assure that each party receives a fair opportunity to present their case to the jury without prejudice to the other.

11. Here there is no merit in the defendant's claim that the circuit court erred in not requiring the administrators to elect between their personal injury survival claim and wrongful death claim. On this record, it is evident that the hospital vigorously contested that the patient had suffered any compensable injury for which a survival claim could be successfully maintained and also that any act of its employees had caused his death. Election is required only at a time when the record sufficiently establishes that the personal injuries and the death arose from the same cause. In this case, the circuit court correctly determined that compelling an election would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which the hospital was contesting on separate and independent grounds.

12. Under these circumstances, there was no appropriate time prior to trial at which compelling an election would not have prejudiced the administrators and, consequently, unfairly benefited defendant. Accordingly, the circuit court did not err in denying the defendant's motion to compel the administrators to elect between the survival and wrongful death claims.

13. In considering the testimony of a witness, the effect of the testimony must be determined from a fair reading of it as a whole, and not merely by reference to isolated statements.

14. Even when a portion of a party's evidence is potentially adverse to his case, that evidence must be weighed in the context of all the evidence presented by [Page 62] the party. Especially when, as here, the party is seeking to prove alternative theories of his case, such conflicts in the evidence are best resolved by the jury.

15. In light of the fact that the defendant hospital continued to dispute the issue of causation with respect to the wrongful death claim, the jury would have been free to discount a witness' conclusion that the hospital staff's negligence in failing to detect and treat the urinary tract infection contributed to the patient's death, while still accepting that portion of the testimony establishing that the negligence that permitted the infection to develop caused the patient's personal injuries. Accordingly, the circuit court did not err in overruling the motion to strike the evidence as to the administrators' personal injury survival claim.

16. When a personal representative is permitted to go forward with both a personal injury survival claim and a wrongful death claim, there is at least the potential that the jury could conflate the differing elements of damage in rendering the single verdict. In this case, however, the jury's verdict does not reflect any confusion as to the law or undue sympathy based on the loss of solace evidence for the wrongful death claim that was not relevant to damages for the survival claim.

17. Under Code § 8.01-678, when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, the judgment will be affirmed notwithstanding the potential for a defect or imperfection in the process by which the judgment was obtained.

18. In this case the record shows that the circuit court was painstaking in its efforts to instruct the jury both in how it was to determine the liability, if any, of the defendant and then, based upon its determination, what quantum of damages could be assessed depending on whether that liability was for the wrongful death claim or for the survival claim. The law and its application were clearly detailed in the instructions, the court's further explanations, and in the verdict form.

19. Though defendant might have requested a specific instruction expressly cautioning the jury to disregard evidence that was not relevant to the damages it might award, it did not do so, and in any case such an instruction would have added little to the court's clear differentiation of the two causes of action in the other instructions.

20. A jury is presumed to follow the court's instructions, and an appellant who challenges a verdict bears the burden of rebutting that presumption.

21. In this case, there is no indication that the jury failed to follow the court's instructions and nothing express in the record to rebut the presumption that the jury did not do so.

22. Similarly, the contention that the amount of the verdict is excessive in light of the nature of the patient's injuries is rejected. The record amply supports the conclusion that as a result of the hospital staff's negligence, he received substandard care that resulted not merely in his developing the urinary tract infection, but of all the consequential medical complications arising from the infection [Page 63] including, but not limited to, developing an ileus, severe abdominal pain and distention, and delirium, as well as the cost of the second hospitalization.

23. In light of this evidence, and in consideration of the fact that the jury's verdict reflects a clear understanding that the administrators were entitled to recover only for the survival claim if the defendant was found to be negligent, but not liable for the patient's death, the award is adequately supported by the record and the circuit court did not err in refusing to set the verdict aside.

    Appeal from a judgment of the Circuit Court of the City of Lynchburg. Hon. J. Leyburn Mosby, Jr., judge presiding.

Affirmed.

    Frank K. Friedman (Elizabeth Guilbert Perrow; Michael C. Richards; Robert Michael Doherty; Woods Rogers; WootenHart, on brief), for appellant.

    L. Steven Emmert (Robert W. Carter, Jr.; Sykes, Bourdon, Ahern & Levy, on brief), for appellees.

    Amicus Curiae: Virginia Trial Lawyers Association (Joshua D. Silverman; Carolyn C. Lavecchia; Williamson & Lavecchia, on brief), in support of appellees.

JUSTICE KOONTZ delivered the opinion of the Court.

    In this appeal involving a medical malpractice action, the principal issue we consider is whether the circuit court erred in failing to require the administrators of a decedent's estate to elect between their alternative claims for wrongful death, Code § 8.01-50, and a survival action for personal injuries to the decedent, Code § 8.01-25, which the administrators alleged arose from the same acts of medical negligence. We further consider whether the circuit court erred in not striking the administrators' evidence on the survival claim and in subsequently confirming the jury's verdict in favor of the administrators on that claim.

BACKGROUND

    [1] A prevailing party that comes before us with a jury verdict approved by the trial court “stands in the most favored position known to the law.” Bitar v. Rahman, 272 Va. 130, 137, 630 S.E.2d 319, 323 (2006) (internal quotation marks omitted). Accordingly, since the jury in this case returned its verdict for the administrators, “we view the evidence and all reasonable inferences deducible therefrom [Page 64] in the light most favorable to the [administrators], the prevailing part[ies] at trial.” Lo v. Burke, 249 Va. 311, 318, 455 S.E.2d 9, 13 (1995).

    On November 3, 2004, Leonard Mullins, age 84, was admitted to Lynchburg General Hospital, a medical facility operated by Centra Health, Inc., for treatment of a broken hip sustained in a fall. As a result of negligence by hospital staff in the insertion and maintenance of a Foley catheter, a thin tube placed into the bladder to drain urine, Mullins developed a urinary tract infection. Following surgery to repair the broken hip, hospital staff failed to timely remove the catheter as ordered and failed to recognize and report the development of the urinary tract infection. Mullins was discharged from the hospital on November 12 to be transferred to a nursing home. Mullins was readmitted to the hospital on the following day for treatment of the continuing urinary tract infection and remained there until his death on November 21, 2004.

    On June 10, 2005, Leonard J. Mullins and Elizabeth P. Shergill, Mullins' son and daughter, qualified as co-administrators of Mullins' estate. On December 1, 2005, the administrators filed a motion for judgment1 against Centra Health alleging that the negligence of its employees proximately caused personal injuries to Mullins. The administrators asserted a claim for wrongful death, alleging that Mullins' death was the result of sepsis caused by the urinary tract infection, and an alternate survival claim for the personal injuries sustained by Mullins prior to his death as a result of the hospital's negligent treatment resulting in the urinary tract infection and its attendant complications. The administrators requested a jury trial.

    Thereafter, Centra Health filed an answer and grounds of defense. Centra Health denied generally that its employees had been negligent or that any negligence had caused Mullins' injuries or his death. Centra Health further averred that it would rely on the theory that Mullins' death resulted from an intervening cause as an affirmative defense to the wrongful death claim.

    Along with its answer and grounds of defense, Centra Health filed a motion requesting that the circuit court compel the administrators to elect between the survival and wrongful death causes of [Page 65] action. Citing Hendrix v. Daugherty, 249 Va. 540, 547, 457 S.E.2d 71, 75 (1995), Centra Health maintained that because the administrators could “not recover for the same injury under the survival statute and the wrongful death statute,” an election was required at some point prior to trial.

    In a memorandum of law, the administrators responded to Centra Health's motion. The administrators contended that no election between the survival and wrongful death causes of action was required until after the jury had received the evidence and a verdict had been returned. The principal support for this contention was by citation to prior case decisions from various circuit courts. Additionally, the administrators asserted that our decision in Lucas v. HCMF Corp., 238 Va. 446, 449-50, 384 S.E.2d 92, 94 (1989), supported their position that a personal injury survival claim and a wrongful death claim could be presented to the trier of fact when the defendant contested the issue whether the alleged negligence that purportedly injured the decedent also contributed to the decedent's death. The administrators conceded that “if Mullins' injuries caused his death, the [administrators] are entitled to recover only on a wrongful death claim.” However, the administrators maintained that so long as Centra Health contested the issue of proximate causation with respect to the wrongful death claim, the administrators should be entitled to proceed on both claims and to have the issue of proximate causation decided by the jury.

    Pursuant to a pre-trial scheduling order, the administrators filed a designation of expert witnesses. Darlene Hinton, R.N. was designated as a standard of care expert and Dr. Daniel Pambianco was designated as a causation expert. According to the designation, Dr. Pambianco would testify that as a result of the failure to perform under the standard of care that would be established by Hinton's expected testimony, “Mullins was permitted to develop a massive urinary tract infection, ileus,[2] and nutritional compromise, from which his death resulted.” The administrators further reserved the right to elicit testimony from Mullins' health care providers or expert witnesses called by Centra Health. [Page 66]

    On June 29, 2007, Centra Health filed a memorandum of law in support of its motion to compel the administrators to elect between the survival and wrongful death causes of action. Centra Health contended that because the administrators could not recover for the same injury under both causes of action, the administrators should not be permitted to present evidence of the differing elements of damages under each cause of action to the jury. Centra Health asserted that permitting the administrators to present such evidence would result in prejudice to Centra Health because “[i]t is unreasonable to believe that the jury would be able to successfully absorb all of the [administrators'] proposed evidence, some of which is only relevant to the survival action, and some of which is only relevant to a wrongful death action, compartmentalize it based upon the different theories of the case, and reach a true verdict.” In the alternative, Centra Health contended that because the administrators would present expert testimony that the alleged negligence of the hospital staff was the cause of Mullins' death, the court should dismiss the survival action because “Virginia law mandates that the [administrators] proceed to trial on only a wrongful death cause of action.”

    Responding to Centra Health's contentions, the administrators asserted that they were “not required to elect between a survival action or wrongful death action before trial if the evidence supports both recoveries.” This was so, the administrators maintained, because Centra Health continued to contest that the negligence of its employees caused Mullins' death and, thus, “the jury should be permitted to resolve all disputed issues of causation.”

    On July 6, 2007, the circuit court conducted a hearing on Centra Health's motion to compel the administrators to elect between the survival and wrongful death causes of action.3 Following brief arguments in which the parties reiterated the positions taken in their memoranda of law, the court overruled Centra Health's motion, stating that it was inclined to “send the case to the jury under both theories at this point.” The court noted, however that it could revisit the issue whether an election was required “once we get into the evidence” or on a motion to strike the evidence at the conclusion of the administrators' case. [Page 67]

    A jury trial on the administrators' motion for judgment was held on July 10, 11 and 12, 2007. As relevant to the issues raised in this appeal, Dr. Pambianco testified that Mullins received “poor catheter care . . . which increased the chance of urinary tract infection and contributed to it.”4 He further testified that because hospital staff failed to recognize that Mullins had developed the infection, Mullins “developed multisystem failure and a systemic infection” which developed into sepsis, an infection of the blood, prior to being discharged from his first hospitalization. Mullins also developed ileus, causing him to suffer “abdominal pain and discomfort” and distention of his abdomen. He also experienced “delirium during the course of his [first] hospitalization” resulting from changes in blood pressure and his body's other responses in an attempt to fight the infection. Dr. Pambianco concluded that the negligence of Centra Health's employees during the first hospitalization “culminated in [Mullins] developing a serious infection that overwhelmed his body and was the cause of his death.”

    Counsel for the administrators then asked Dr. Pambianco, “What would have been the effect of the additional Foley [catheter] care that was not provided during the second hospitalization, either as it relate[d] to Mr. Mullins' cause of death or as it related to additional injury to Mr. Mullins?” Dr. Pambianco stated that while proper care might have improved Mullins' ability to fight off the infection, he believed that Mullins' death probably could not have been avoided during the second hospitalization as “any chance he would have had to recover at that juncture would have been diminished.” He further testified, however, that had Mullins received proper medical care for the urinary tract infection during the first hospitalization, he would not have required a second hospitalization. Thus, Dr. Pambianco opined that it was the failure to recognize and treat the infection that directly contributed to Mullins' death.

    During cross-examination, counsel for Centra Health asked Dr. Pambianco whether Mullins' medical records established that Mullins suffered from various other medical conditions, including age-related [Page 68] cerebral atrophy, hypertension, degenerative joint disease, and chronic anticoagulation. Dr. Pambianco confirmed that, based on his review of the medical records, Mullins had suffered from those conditions, had undergone an aortic valve replacement, and had a history of atrial fibrillation and suffered a mild congestive heart failure. Dr. Pambianco further agreed that at the time of the initial admission to the hospital, Mullins' health was “guarded” and that given his medical history and age, Mullins had “a fairly high mortality and morbidity rate” as a result of his undergoing treatment for the fracture of his hip.

    The administrators presented extensive evidence with respect to damages for the wrongful death. This evidence came principally in the form of loss of solace testimony from the administrators, their sisters Mary Harris, Ann Thomas, and Helen Sud, and their mother, Helen G. Mullins. These witnesses also testified as to Mullins' pain and suffering during his two hospitalizations in support of the damages claimed for the survival action.

    At the conclusion of the administrators' case-in-chief, Centra Health renewed its motion to compel an election between the causes of action and also moved to strike the evidence as to the survival action. Centra Health also asserted that as Dr. Pambianco had testified that the alleged negligence had resulted in Mullins' death “it would be appropriate to strike the surviv[al] claim.” The administrators, while agreeing that there could only be one recovery, contended that both causes of actions should be submitted to the jury “to resolve the disputed issue of causation.” The circuit court overruled both the renewed motion to compel election and the motion to strike, stating that it would “instruct the jury that it's an alternative damage situation.”

    Centra Health presented expert testimony on proximate causation from Dr. William A. Petri, Jr. and Dr. Malcolm Cothran. Doctors Petri and Cothran both opined that Mullins' death resulted from his pre-existing medical conditions, rather than as a result of the urinary tract infection.

    At the conclusion of its evidence, Centra Health again renewed the motion to compel an election between the two causes of action. The circuit court overruled the motion, stating “we have got a situation where we have a classic jury issue on causation and whether it's a wrongful death and/or survival action . . . there's evidence both ways.” [Page 69]

    The circuit court granted instructions proffered by the administrators that directed the jury to first consider whether Centra Health, through its employees, had been negligent in failing to provide an appropriate standard of care to Mullins and, if so, whether that “negligence was a proximate cause of injury or death to Leonard Mullins.” In Instruction No. 16, which it later referred to as “the wrongful death damages [instruction],” the court advised the jury as to the evidence it could consider in awarding damages for wrongful death including “the sorrow, mental anguish, and loss of solace suffered by” Mullins' family, expenses for his hospitalization incident to the injuries that resulted in his death, and funeral expenses. Similarly, in Instruction No. 17, “the survival damage[s] instruction,” the court advised the jury that if it were to award damages for personal injuries to Mullins “that did not cause his death,” it should only consider the effect of those injuries on Mullins' health, his pain, suffering and inconvenience, and the medical expenses he incurred as a result. Centra Health noted its objection to these instructions, but did not request a separate instruction expressly cautioning the jury that if it chose to award damages under one theory it should disregard the damages evidence relevant to the other cause of action.

    After the circuit court read the two damages instructions to the jury, the court provided this additional guidance:

They [the two damages instructions] are effectively going to be mutually exclusive. If you decide to award damages, you can do it under one.

    If you find negligence caused the death, you can do it under [the wrongful death damages instruction]. If you find it just caused the injury, you can do it under [the survival damages instruction], but you can't do both. You've got to choose. That's a jury issue for [you] to resolve, and you have to determine one or the other.

    That will become apparent on the verdict form, but you don't award either unless you find for the plaintiffs and that the defendant was negligent.

    The jury was given a multi-part verdict form, prepared by the administrators, that provided for alternative verdicts on either wrongful death or the survival personal injury claims. The verdict form directed the jury to complete only one of the two sections, the first of [Page 70] which permitted the jury to make individual awards to Mullins' widow and children as well as awards for medical and funeral expenses, while the second directed the jury to award damages in accord with the instruction for the personal injury survival claim. Each part also permitted the jury to render a verdict for Centra Health. The verdict form expressly referenced the two instructions detailing the source of damages for each claim. In objecting to the verdict form Centra Health stated that it would “incorporate by reference [its] previous arguments” concerning its contention that the administrators should be required to elect between the two causes of action before the case was submitted to the jury.

    The circuit court gave the jury the following guidance with respect to its consideration of the verdict and how to render its decision on the verdict form:

[W]e have a verdict form and it's a little more complicated than the normal civil case because it has a Part A and Part B to it.

    The Part A part is involving the wrongful death, and the Part B is what we call a survival action or injuries before Mr. Mullins

Ben Glass
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney