This page is about Virginia’s wrongful death law. The purpose is to explain how wrongful death lawsuits work and who is eligible for either settlement compensation or a jury payout. We also explain the second and sometimes equally important cause of action in death cases, a survival action. This claim provides a second path of compensation for the victim’s loved ones.
Virginia Wrongful Death and Survival Action Lawsuits
The Commonwealth of Virginia, like most other states, recognizes two distinct causes of action relating to the death of a person caused by another party’s misconduct or negligence: wrongful death claims and survival actions. These legal actions serve different purposes and enable different forms of recovery.
Wrongful Death Lawsuits in Virginia
A Virginia wrongful death lawsuit is brought under a statute that compensates the surviving family when the negligent, reckless, or intentional conduct of a party causes the death of another person. The aim is to compensate the decedent’s family members or estate for their loss (Va. Code Ann. § 8.01-50).
The lawsuit is typically filed by a representative of the deceased’s estate on behalf of the statutory beneficiaries as defined by the Virginia Code. Beneficiaries can include a surviving spouse, children, grandchildren, parents, siblings, or other family members depending on the circumstances.
Recoverable damages in a wrongful death suit may include loss of financial support, companionship, comfort, guidance, and other services provided by the decedent. Additionally, recovery can include sorrow, mental anguish, and solace, which may include society, companionship, comfort, guidance, and advice of the decedent. Medical and funeral expenses related to the deceased’s injury or illness can also be recovered.
Survival Actions in Virginia
A survival action lawsuit in Virginia is also brought under a specific statute. The difference is a survival action is a claim brought by the estate of a deceased person to recover losses that the deceased suffered prior to death. Essentially, survival actions allow personal injury claims the decedent could have pursued if they had survived to continue after their death.
The damages recoverable in survival actions may include compensation for pain and suffering, loss of income between the injury and death, and medical expenses incurred due to the injury. Unfortunately, Virginia is in the minority of states that do not allow damages for sorrow, mental anguish, and solace are not available in survival actions as these are considered personal to the decedent.
Deadline for Submitting a Wrongful Death Lawsuit in Virginia
In Virginia, the law stipulates a two-year deadline from the date of death for filing wrongful death and survival action claims. If a claim isn’t filed within this period, it is barred by the Virginia statute of limitations. There are some specific exceptions to the two-year statute of limitation. But they rarely apply.
Who Decides Whether to Accept a Settlement Amount in a Wrongful Death or Survival Action Claim?
The administrator of the wrongful death lawsuit (usually the surviving spouse) and the administrator of the survival action lawsuit (usually the estate’s personal representative) solely make the decision on whether agree to a settlement amount or whether to go to trial. Moreover, an administrator (or executor) is the only person with standing to sue.
But that does not mean that person gets all or even any of the money. Any financial compensation recovered in a survival action wrongful death lawsuit, and its distribution among beneficiaries, must be authorized by a judge under the settlement. Usually, the beneficiaries can agree on how to divide the money, and often our lawyers have our clients agree in advance to avoid confusion. But if the beneficiaries are unable to agree on the division of the settlement when the party responsible for the negligence is ready to pay, a judge must determine the distribution either through a trial or a hearing to assess the interest each beneficiary holds.
When our clients agree in advance on how to distribute the money, this agreement usually trumps any jury’s division of the proceeds. This allows the family to focus on maximising the jury’s payout without worrying about how the jury divides it up among the family. But if there is no agreement and the case goes to verdict, the allocation of the award to each beneficiary is determined by the jury.
Key Virginia Wrongful Death and Surival Action Cases
- Culler v. Johnson, 98 Va. Cir. 470 (2014). An arbitration agreement in a Franklin County nursing home claim was found to be binding not only on the executor but also on the beneficiaries becasue a wrongful death claim is dependent and derivative of the injury asserted by the decedent at the time of death. “Virginia’s wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent’s claim for any personal injury
that caused death,” so the decedent “by his very conduct can affect the possibility of recovery under the wrongful death scheme.”
- Perreault v. Free Lance-Star, 276 Va. 375 (2008). In this Spotsylvania County surgical death case, the court found that Virginia wrongful death settlements must be approved by a judge. According to Virginia Code § 8.01-55, before a court can give its stamp of approval to such a settlement, a formal request or application – known as a petition – must be submitted to the court by the legally authorized party. (The same is true for settlements on behalf of minors.)
- Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2d 708 (2009). The court explained that beneficiaries can recover for their individual loss of the decedent’s care, comfort, and guidance, and for their individual sorrow, mental anguish, and solace, rather than these being collective losses.
- Sea-Land Service, Inc. v. O’Neal, 224 Va. 343, 297 S.E.2d 647 (1982). This Lynchburg medical malpractice lawsuit elucidates the principle in a survival action, a decedent’s pain and suffering prior to death, and other damages, survive in favor of the estate.
Virginia Wrongful Death Verdicts & Settlements
Below are summaries of verdicts and reported settlements from Virginia wrongful death cases.
$2,230,000 Verdict (2023 Norfolk): After experiencing abdominal pain, a former nurse of 58 years at DePaul Hospital underwent a colon resection procedure in 2018. Following the procedure, an unexpected spike in her white blood cell count was noted, indicating the onset of an infection. Unfortunately, the treating surgeons failed to prescribe antibiotics or arrange for an abdominal CT scan that would have identified a serious intestinal leak. The patient succumbed to septic shock due to multiple organ failure as a result of this untreated complication. After a week-long trial, a Norfolk jury issued a malpractice verdict of $2.23 million was awarded against the surgeons, Bon Secours Surgical Specialists, and Bon Secours DePaul Hospital.
$400,000 Settlement: (2023 W.D. Va.): 77-year-old female, presented to a medical facility owned and operated by defendant Carilion Roanoke Memorial Hospital and underwent procedures including a cardiac catheterization. She died, allegedly due to a massive retroperitoneal hemorrhage, having lost three liters of blood. Lawsuit alleged that doctors at hospital were negligent in failing to recognize that she was at risk for this type of complication.
$300,000 Settlement (2022 W.D. Va.): Elderly woman died 3 days after falling in injuring herself while under the care of the defendant nursing home, the Elms of Lynchburg. The lawsuit alleged that the nursing home and its staff were negligent in failing to prevent her from falling.
$100,000 Settlement (2022 Norfolk): Decedent was a passenger in a vehicle that was struck. He suffered fatal injuries in the accident and was survived by a wife, 2 adult children, and 1 minor child. The driver of the vehicle the decedent was in was at-fault for the accident and the driver’s insurance company settled the wrongful death claim (presumably for policy limits of $100k).
$250,000 Settlement (2022 Norfolk): Adult male was killed in a car accident caused by the defendant. The at-fault driver’s insurance company (Allstate) contributed policy limits of $50,000 with the defendant providing $50,000 above his policy limits. The decedent’s underinsured motorist insurer (State Farm) provided an additional $150,000.
$1,500,000 Settlement (2022 Norfolk): Adult-female died approximately seven hours after the performance of surgeries including a breast lift and reduction and a Fleur de Lis abdominoplasty performed by the defendant plastic surgeon. Lawsuit contended the defendant surgeon was negligent in performing a ten hour surgery in an in-office setting, failing to admit the decedent to a hospital postoperatively when she reported episodes of dizziness several times, prematurely discharging her.
$1,100,000 Settlement (2021 Botetourt County): 46-year-old woman suffered fatal injuries when the vehicle she was a passenger, traveling on an interstate and operated by the defendant, was involved in a single-vehicle accident. The plaintiff alleged that the defendant was negligent in driving while distracted and allowing her vehicle to drift out of its lane, causing it to strike an embankment and overturn several times.
$4,844,184 Verdict (2019 E.D. Va.): 40-year-old construction worker, died from a traumatic brain injury when he fell off a truck while trying to remove a transport crate and hit the asphalt with the back of his head. A product liability lawsuit was brought against the manufacturer of the transport crate alleging that it was defectively designed making it unsafe.
Contact a Virginia Wrongful Death Lawyer
Contact the Virginia wrongful death lawyers at Miller & Zois for a free consultation. Call us at 800-553-8082 or contact us online.