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Josh Silvermand Carolyn Lavecchia Prevail in the Virginia Supreme Court
Posted on Jan 20, 2009
A common issue in nursing home and assisted living cases is proving that the defendant's negligence was a cause of death. The difficulty comes from the fact that every person in an assisted living facility or nursing home has chronic medical conditions many of which can be fatal. When a patient dies with a pressure sore or while suffering from malnutrition it is often disputed whether the negligence of the nursing home caused the patient's death or if the patient died of other medical conditions.
Historically, under Virginia law if the health care provider's negligence caused a non-lethal injury and the patient dies of another cause, the case is pursued as a survivorship action. If the defendant's negligence was a cause of death then the case must be pursued as a wrongful death action. Recently, nursing homes, doctors, and hospitals have argued that the plaintiff must choose one path and only one path. However, if the plaintiff chooses one theory and the jury concludes that the defendant was negligent but the plaintiff chose the wrong theory the plaintiff would lose even though the defendant was at fault.
In this case against Lynchburg General Hospital, the Virginia Supreme Court ruled that the plaintiff can pursue both survivorship and wrongful death claims in the same case and the jury determines whether the defendant's negligence caused non-lethal injuries or caused the plaintiff's death. Since this is an important issue for our clients, we filed an amicus curiae brief in support of the prevailing rule that a plaintiff can pursue alternative remedies of survivorship and wrongful death damages.
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