PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, Chafin, JJ., and Millette, S.J.
LEWIS DARNELL GREEN, PERSONAL REPRESENTATIVE/EXECUTOR OF THE ESTATE OF ONEIDA STILTNER GREEN, DECEASED OPINION BY v. Record No. 190181 JUSTICE S. BERNARD GOODWYN June 4, 2020 DIAGNOSTIC IMAGING ASSOCIATES, P.C., ET AL.
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY Richard C. Patterson, Judge
In this appeal, we consider whether the circuit court erred in dismissing a suit for
wrongful death against Virginia medical providers on the basis that the plaintiff had received a
personal injury settlement against Kentucky medical providers concerning the same injury.
I. BACKGROUND
Lewis Darnell Green (Green), the husband of Oneida Stiltner Green (the decedent), is the
personal representative and executor of the decedent’s estate. Green filed wrongful death and
personal injury actions in a Virginia circuit court and a Kentucky circuit court, alleging that the
decedent died as the result of medical professionals in both states failing to identify and treat the
decedent’s “mesenteric ischemia when her ischemic bowel was salvageable.”
A. Medical Treatment in Virginia
On May 24, 2013, the decedent was admitted to Clinch Valley Medical Center in
Virginia because she was experiencing nausea, vomiting, and abdominal pain. 1 Dr. Waheed
Bhatti (Dr. Bhatti), an agent or employee of Clinch Valley Medical Center, admitted the
1 Because courts take facts alleged in a complaint as true in ruling on a motion to dismiss, the facts here are those alleged in the amended complaint. See Bragg v. Board of Supervisors, 295 Va. 416, 423 (2018).
1 decedent into the center, noting a history of stones in her pancreatic duct and chronic
pancreatitis.
The decedent had an abdominal CT scan on May 26, 2013, to look “‘for necrotic
pancreas.’” Dr. Qasim Rao (Dr. Rao), an agent or employee of Diagnostic Imaging Associates,
P.C. (Diagnostic Imaging), read the CT scan results. Dr. Rao noted “pancreatic atrophy with
dilation of the main pancreatic duct, calcifications within the proximal duct, no inflammation to
suggest pancreatitis and no evidence of bowel obstruction.”
That same day, Dr. Bhatti and Dr. Ariel Enrique Rodriguez Pimentel (Dr. Pimentel), an
agent or employee of Clinch Valley Advanced Laparoscopic Surgery (Clinch Valley Surgery),
examined the decedent and reviewed her CT scan results. The decedent was discharged from
Clinch Valley Medical Center on May 28, 2013.
B. Medical Treatment in Kentucky
The decedent continued to experience nausea, vomiting, and abdominal pain, and on May
29, 2013, she was admitted to Pikeville Medical Center in Kentucky, but she was discharged the
next day.
The decedent experienced severe abdominal pain and returned to Pikeville Medical
Center on June 4, 2013. That same day, she was transferred and admitted to the University of
Kentucky Medical Center. The decedent was “diagnosed with ischemic bowel due to the
occlusion of her” superior mesenteric artery. Surgeons at the University of Kentucky Medical
Center “remove[d] extensive amounts of [the decedent’s] bowel that had become necrotic. They
also performed a bypass of her [superior mesenteric artery] which successfully revascularized
her remaining bowel.”
2 In the following two months, the decedent had “multiple other surgeries for her ischemic
bowel, leaking anastomosis, abdominal washouts and fistula formation” at the University of
Kentucky Medical Center. During this timeframe, the decedent also experienced “complications
with sepsis, pneumonia, and renal failure.” The decedent received a tracheotomy and a feeding
tube was put in place.
C. Additional Medical Treatment
On August 8, 2013, the decedent was transferred to a nursing home, but on August 10,
she returned to the University of Kentucky Medical Center. She again was transferred to a
nursing home on August 14. On August 23, due to abdominal pain and vomiting, she was
admitted to Johnston Memorial Hospital in Virginia.
The decedent was admitted to Johnson City Memorial Hospital in Tennessee on August
25. The decedent died on August 29 “as a result of complications directly related and
attributable to the extensive bowel resection she underwent on June 4, 2013.”
D. Procedural History in Kentucky Case
On August 25, 2014, Green sued Pikeville Radiology, PLLC (Pikeville Radiology), a
doctor employed by Pikeville Radiology, and Pikeville Medical Center (collectively the
Kentucky Defendants) in a Kentucky circuit court. Green alleged claims for the decedent’s
personal injury and wrongful death, and sought damages for her pain and suffering, medical
expenses, loss of wages, and Green’s loss of consortium. The complaint, in part, alleged that the
Kentucky Defendants were negligent and “deviated from the appropriate standards of care,” and
that their failure to identify and treat the decedent’s mesenteric ischemia “when her ischemic
bowel was salvageable, was a proximate cause of her death.” The complaint alleged that
Pikeville Medical Center deviated from the appropriate standard of care as follows:
3 a. they failed to identify an occluded superior mesenteric artery and resulting bowel ischemia as a potential cause of Oneida Green’s symptoms;
b. they failed to rule out an occluded superior mesenteric artery and resulting bowel ischemia as a cause of Oneida Green’s symptoms;
c. they failed to treat Oneida Green for an occluded superior mesenteric artery and resulting bowel ischemia, and/or failed to have her transferred to another facility for treatment; they failed to conduct a proper differential diagnosis with regard to Oneida Green’s symptoms;
d. they otherwise failed to comply with the applicable standards of care under the circumstances then and there existing.
On February 28, 2017, the Kentucky circuit court entered an order granting Green’s
motion to dismiss the wrongful death and loss of consortium claims against the Kentucky
Defendants. On June 27, 2017, the circuit court entered an order reflecting Green’s agreement to
dismiss all claims against Pikeville Radiology and the doctor employed by Pikeville Radiology,
leaving Pikeville Medical Center as the sole defendant in Kentucky.
Green settled with Pikeville Medical Center for an undisclosed amount and, on July 3,
2017, the Kentucky circuit court entered an order of dismissal that recognized the settlement and
dismissed all claims against Pikeville Medical Center with prejudice.
E. Procedural History in Virginia Case
On August 24, 2015, Green sued Diagnostic Imaging, Dr. Rao, Dr. Bhatti, Clinch Valley
Medical Center, Dr. Pimentel, and Clinch Valley Surgery in the Circuit Court of Tazewell
County, alleging wrongful death under Code § 8.01-50 and a survival action for personal injury
under Code § 8.01-25.
On August 11, 2016, Clinch Valley Medical Center filed a plea in bar, contending that
the survival action was barred by the statute of limitations. Clinch Valley Surgery and Dr.
4 Pimentel filed a plea in bar on August 12, 2016, which incorporated by reference Clinch Valley
Medical Center’s plea in bar.
On December 15, 2016, the circuit court granted Green’s motion to nonsuit the case,
without prejudice, regarding Clinch Valley Medical Center.
On April 3, 2018, the circuit court granted Green’s request for leave to amend the
complaint, and Green filed an amended complaint on that same day. The amended complaint
does not include Clinch Valley Medical Center as a defendant or assert the survival action for
personal injury. The amended complaint solely asserts a wrongful death action under Code
§ 8.01-50, alleging that Dr. Bhatti, Clinch Valley Surgery, Dr. Pimentel, Diagnostic Imaging,
and Dr. Rao (collectively the Virginia Defendants) were negligent and that their “failure to
identify and treat [the decedent’s] mesenteric ischemia when her ischemic bowel was
salvageable was a proximate cause of her death.” The amended complaint, in part, alleges that
the Virginia Defendants diverged from the necessary standard of care as follows:
a. they failed to identify ischemic bowel that was clearly present on the CT scan taken on May 26;
b. they failed to identify a clearly occluded superior mesenteric artery present on the CT scan taken on May 26;
c. they failed to identify an occluded superior mesenteric artery and resulting bowel ischemia as a potential cause of Mrs. Green’s symptoms;
d. they failed to rule out an occluded superior mesenteric artery and resulting bowel ischemia as a cause of Mrs. Green’s symptoms;
e. they failed to treat Mrs. Green for an occluded superior mesenteric artery and resulting bowel ischemia,
f. they failed to have her transferred to another facility for treatment;
g. they failed to conduct a proper differential diagnosis with regard to Mrs. Green’s symptoms; and/or
5 h. they failed to comply with the applicable standards of care under the circumstances then and there existing.
In late April 2018, the Virginia Defendants filed separate motions to dismiss. The
Virginia Defendants later filed a joint memorandum of law in support of their motions to
dismiss. They argued that Green’s lawsuits in Kentucky and Virginia asserted the same
injuries—“that the Virginia and Kentucky defendants failed to identify and treat the Decedent’s
mesenteric ischemia when her ischemic bowel was salvageable, which is alleged to be a
proximate cause of her death.” The Virginia Defendants contended that Code § 8.01-56 barred
Green’s wrongful death action in Virginia because Green had already elected his remedy when
he recovered for personal injury to the decedent in Kentucky. Additionally, the Virginia
Defendants argued that the prohibition against claim-splitting and double recovery barred Green
from “split[ting] his single cause of action into two separate claims and recover[ing] under both,”
and that the wrongful death action was also barred by judicial estoppel.
Following a hearing, the circuit court granted the Virginia Defendants’ motions to
dismiss on November 15, 2018, and dismissed the amended complaint with prejudice. In its
letter opinion, dated September 20, 2018, the circuit court concluded that Code § 8.01-56 barred
Green’s wrongful death action in Virginia.
The circuit court stated that Code § 8.01-56 requires plaintiffs in Virginia “to make an
election as to whether they want to recover for personal injury or wrongful death,” and that Code
§ 8.01-56 makes it clear that Virginia law only allows for “one recovery for the same injury.”
Noting that the law in Kentucky does not require a plaintiff to make such an election, the circuit
court opined that not requiring a plaintiff to make an election, as required by Code § 8.01-56,
would be seen as resulting in a “double recovery” or “case splitting” under Virginia law. It
concluded that Green’s “Kentucky settlement for personal injury equates to the election required
6 by” Code § 8.01-56. The circuit court stated that under a plain reading of Code § 8.01-56, “the
mere acceptance of the recovery in Kentucky for the same injury does foreclose any later
acceptance of a recovery in Virginia for the same injury.” Thus, Green could not pursue a
wrongful death action in Virginia for the same injury. Lastly, the circuit court also concluded
that judicial estoppel applied as a bar to Green’s wrongful death claim. Therefore, it granted the
Virginia Defendants’ motions to dismiss.
Green appeals to this Court. We granted four assignments of error:
1. The circuit court erred in granting the Defendants’ [m]otion to [d]ismiss.
2. The circuit court erred in finding that Plaintiff’s claim was barred by Virginia Code § 8.01-56.
3. The circuit court erred in finding that the Plaintiff’s settlement of the Kentucky case equated to an election of remedy under Virginia law.
4. The circuit court erred in finding that Plaintiff’s claim was barred by judicial estoppel.
II. ANALYSIS
In reviewing a circuit court’s decision to grant a motion to dismiss, if no evidence has
been taken, “we treat the factual allegations in the [complaint] as we do on review of a
demurrer.” Bragg v. Board of Supervisors, 295 Va. 416, 423 (2018) (citation and internal
quotation marks omitted). Accordingly, “[w]e accept the truth of all material facts that are . . .
expressly alleged, impliedly alleged, and those that may be fairly and justly inferred from the
facts alleged.” Id. (citation and internal quotation marks omitted). We “review the circuit
court’s decision to dismiss the [complaint]” as well as any “issues of statutory interpretation, de
novo.” Id.
On appeal, Green argues that the circuit court erred in granting the Virginia Defendants’
motions to dismiss, in part, because it incorrectly interpreted and applied Code § 8.01-56. Green
7 argues that his settlement for personal injury and abandonment of the wrongful death claim in
Kentucky did not elect Green’s remedy and bar him from pursuing a wrongful death claim in
Virginia.
In interpreting a statute, we seek “to effectuate the intent of the legislature as expressed
by the plain meaning of the words used in the statute.” Llewellyn v. White, 297 Va. 588, 595
(2019). Accordingly, we “appl[y] the plain language unless the words are ambiguous or such
application would render the law internally inconsistent or incapable of operation.” Id.
Code § 8.01-56 provides as follows:
when a person who has brought an action for personal injury dies pending the action, such action may be revived in the name of his personal representative. If death resulted from the injury for which the action was originally brought, a motion for judgment and other 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. In such cases, however, there shall be but one recovery for the same injury. 2
In the instant case, the circuit court characterized Code § 8.01-56 as an election of
remedy statute and reasoned that the settlement, in Kentucky, of the decedent’s personal injury
claim, equated to an election of remedy pursuant to Code § 8.01-56. We disagree.
Code § 8.01-56 plainly states that if the injured individual’s death resulted from the
injury, the action for that injury must be pursued in a wrongful death suit under Code § 8.01-50.
In Virginia, a personal representative does not have the option of maintaining a personal injury
2 Code § 8.01-50 governs how and when to bring a wrongful death action: A. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person . . . and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action . . . to recover damages . . . then, and in every such case, the person who . . . would have been liable, if death had not ensued, shall be liable to an action for damages . . . notwithstanding the death of the person injured . . . .
8 action for a decedent’s injury if that injury resulted in the decedent’s death. See Code §§ 8.01-25
and -56. 3
Pursuant to Code § 8.01-25, although a cause of action survives
the death of the person in whose favor the cause of action existed . . . 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 . . . the action shall be amended in accordance with the provisions of § 8.01-56.
Thus, if the injury complained of caused the death, “the pleadings are required to be amended,
and the case proceeded with as if brought under the death by wrongful act statutes.” Seymour v.
Richardson, 194 Va. 709, 712 (1953) (interpreting a predecessor statute to Code § 8.01-56).
Code § 8.01-56 is not an election of remedy statute. Under the plain language of Code
§§ 8.01-25 and -56, 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.
A plaintiff does not necessarily have to decide before trial whether the facts support a
personal injury action or a wrongful death action. Centra Health, Inc. v. Mullins, 277 Va. 59,
78-79 (2009). 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. See Antisdel v. Ashby, 279 Va. 42, 49 (2010). However,
once the facts adduced at trial sufficiently establish whether “the personal injuries and the death
arose from the same cause,” a plaintiff, in Virginia, can only recover on the claim that is
supported by the record. Centra Health, Inc., 277 Va. at 79. The facts dictate whether a plaintiff
3 In Kentucky, however, a person may “recover in the same action for both the wrongful death of the decedent and for the personal injuries from which the decedent suffered prior to death,” even when such injuries contributed to the death. Ky. Rev. Stat. Ann. § 411.133.
9 can recover under the wrongful death statute, Code § 8.01-50, or whether the plaintiff can
recover for the decedent’s personal injury under Code § 8.01-25.
Accordingly, in the instant case, Green’s ability to recover in Virginia for the personal
injury or wrongful death of the decedent was not an “election” Green was required to make
under Code § 8.01-56. Because Green alleged in the amended complaint that the decedent died
as a result of the injury she suffered at the hands of negligent defendants, in Virginia, his claim
could only proceed as a wrongful death action pursuant to Code § 8.01-50. There is no language
in Code § 8.01-56 that would prohibit the filing of a wrongful death action in Virginia because of
the settlement of a personal injury claim in another state. Further, Kentucky law allows the filing
of a personal injury claim in addition to a wrongful death claim for the same injury. See Ky.
Rev. Stat. Ann. § 411.133. Thus, 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. For these
reasons, we conclude that the circuit court erred in granting the motions to dismiss on the
grounds that Green elected a remedy when he settled the Kentucky personal injury action, and
that Green’s wrongful death action is barred by Code § 8.01-56.
The circuit court also mentioned claim-splitting, double recovery, and judicial estoppel as
possible bases for its ruling on the motions to dismiss. We conclude that none of those doctrines
supports the circuit court’s granting of the motions to dismiss.
Green argues that the circuit court erred in concluding that allowing Green’s wrongful
death action in Virginia would amount to claim-splitting. Green contends that the claim-splitting
rule does not apply here because the claims brought in Kentucky and Virginia are against
different defendants. We agree.
10 “‘Claim-splitting’ is bringing successive suits on the same cause of action where each
suit addresses only a part of the claim.” Bill Greever Corp. v. Tazewell Nat’l Bank, 256 Va. 250,
254 (1998). Claim-splitting is prohibited “based on public policy considerations similar to those
underlying the doctrine of res judicata: avoiding a multiplicity of suits, protecting against
vexatious litigation, and avoiding the costs and expenses associated with numerous suits on the
same cause of action.” Id. “The rule against claim-splitting exists to protect a defendant from
vexatious and costly litigation resulting from a multiplicity of suits on the same cause of action.”
Flora, Flora & Montague, Inc. v. Saunders, 235 Va. 306, 311 (1988) (emphasis added). As we
have recognized, “[n]o one ought to be twice vexed for one and the same cause.” Id. (citation
and internal quotation marks omitted).
In the instant case, the rule against claim-splitting does not apply because Green is not
bringing successive suits against the same defendants. Rather, Green filed separate suits against
the Kentucky Defendants and the Virginia Defendants.
Additionally, the parties do not dispute that the Kentucky Defendants and the Virginia
Defendants are joint tortfeasors, and under Virginia law, “[a] judgment against one of several
joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the
injured party may bring separate actions against the wrongdoers and proceed to judgment in
each . . . .” Code § 8.01-443.
Thus, because Green has not brought multiple suits on the same cause of action against
the same defendants, Green’s amended complaint did not amount to claim-splitting and the
circuit court erred in dismissing Green’s action on this ground.
11 The Virginia Defendants argue that allowing Green to receive a second recovery in
Virginia for the same injury involved in the Kentucky settlement constitutes an impermissible
double recovery.
“A fundamental principle of damages is that a plaintiff may not receive double recovery
for a single injury.” Dominion Res., Inc. v. Alstom Power, Inc., 297 Va. 262, 270 (2019). This
principle is echoed by the language in Code § 8.01-56, which states that “there shall be but one
recovery for the same injury.”
Here, the circuit court dismissed Green’s amended complaint on the grounds that
allowing his wrongful death claim to proceed to trial could result in double recovery. Although
we recognize that Green admittedly seeks recovery in Virginia for the “same injury” involved in
his Kentucky settlement, Code § 8.01-56 and other statutory and common law principles
prohibiting double recovery do not bar Green’s Virginia action from moving forward.
Under the common law principle against double recovery, a party may seek
compensation in two valid causes of action, but he is “estopped from collecting the full amount
[of damages] in the second action if they were partially paid therefor in the first.” Nizan v. Wells
Fargo Bank Minn. Nat’l Ass’n, 274 Va. 481, 491 (2007) (citation and internal quotation marks
omitted); see also Dominion Res., Inc., 297 Va. at 269 (noting that “the settlement amount is
deducted from the amount the remaining tortfeasors owe”). Likewise, Code § 8.01-35.1(A)(1)
may be asserted to prevent a double recovery in certain circumstances. 4 The preclusion upon
4 Code § 8.01-35.1(A)(1) entitles a defendant “to a reduction of the judgment entered against him by the amount the plaintiff receives in settlement from another who is also responsible for the identical wrong, harm, or damage as the defendant.” Llewellyn, 297 Va. at 596; see Code § 8.01-35.1(A)(1).
12 collection of the full amount of damages twice is rooted in “basic principles of fairness and
justice.” Nizan, 274 Va. at 491 (citation and internal quotation marks omitted).
Green contends that he would not receive a double recovery because the circuit court
could reduce any judgment he receives in Virginia by amounts already compensated in the
Kentucky settlement, to the extent any part of that settlement may be found to constitute a double
recovery. We agree. An allegation of a potential double recovery was not a sufficient basis for
dismissing Green’s action; any alleged double recovery can be addressed by the circuit court.
Therefore, the circuit court erred when it dismissed the amended complaint on the grounds that
allowing Green’s wrongful death action in Virginia to proceed would allow a double recovery.
Green argues that judicial estoppel does not apply because the parties in Kentucky and
Virginia are different, and there is “nothing inconsistent about the manner in which the Kentucky
case was resolved and the pursuit of a wrongful death claim here.” Clinch Valley Surgery
concedes that judicial estoppel does not apply. 5 We agree.
“[J]udicial estoppel forbids parties from assuming successive positions in the course of a
suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with
each other, or mutually contradictory.” Bentley Funding Grp., L.L.C. v. SK & R Grp., L.L.C.,
269 Va. 315, 325 (2005) (citation and internal quotation marks omitted). In Virginia, the
doctrine of judicial estoppel only applies “when the parties to the disparate proceedings are the
same.” Id. at 326.
Here, it is clear that the parties in Kentucky and Virginia are different, and there is
nothing inconsistent concerning how the Kentucky case was resolved and Green’s pursuit of the
5 Diagnostic Imaging did not address judicial estoppel in its brief.
13 wrongful death action against different defendants here in Virginia. Therefore, the circuit court
erred in dismissing the amended complaint based upon judicial estoppel.
III. CONCLUSION
For the reasons stated, we hold that the circuit court erred in granting the motions to
dismiss. The judgment of the circuit court will be reversed and this action remanded to the
circuit court for further proceedings.
Reversed and remanded.