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How do courts handle Virginia wrongful death cases?

Adapted from U.S. Air Force photo by Staff Sgt. Joshua Magbanua -- https://www.hanscom.af.mil/News/Article-Display/Article/2032633/dos-donts-of-political-seasons/Virginia sets strict rules for who can file wrongful death lawsuits, when such lawsuits can be filed, and which types of compensation and other monetary damages can be claimed. While the statutory language setting for each set of rules is fairly clear, the ways in which courts interpret and apply the rules are quite complicated.

My Virginia wrongful death law firm colleagues and I have more than 75 years of combined experience navigating the process and helping clients secure wrongful death settlements and jury awards. Here is a brief summary of what every person should know about holding a negligent or reckless party accountable for causing an avoidable loss of life.

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Who Has the Right to File a Wrongful Death Claim in Virginia?

Section 8.01-53 of the Virginia Code names the following individuals as potential beneficiaries of wrongful death settlements or awards made in the name of a deceased individual:

  • Spouse
  • Children
  • Grandchildren when children of the deceased individual have also died
  • Parents or legal guardians
  • Brothers and sisters
  • Another relative who was a dependent of the deceased
  • A child welfare agency when no parent or guardian for a deceased child who was younger than 18 years of age can be identified

When no such individuals or organization can be identified, Virginia also grants the right to pursue a wrongful death case to a deceased person’s grandparents, aunts and uncles, great-grandparents, great-aunts and great-uncles, and “nearest lineal descendant” or “nearest lineal ancestor.”

What is the statute of limitations for filing a wrongful death claim in Virginia?

In nearly all cases, an insurance claim or lawsuit must be filed within two years of the date on which the alleged wrongful death occurred. That explicit statute of limitations does not apply, however, when the person who died as a result of another’s alleged negligence or recklessness was under the age of 18 or when the alleged act of negligence involved leaving an object inside a patient’s body following surgery.

In Virginia, plaintiffs acting on behalf of children who died between the ages of 10 and 17 years 364 days, and who died under circumstances that would have allowed the parents to file personal injury claims had the children lived, can take legal action until the day that would have been a child’s 20th birthday. A similar “tolling” rule is used for children who die before their 8th birthday. A wrongful death claim for a young child can be filed until what would have been the child’s 10th birthday.

For adults who appear to have died because a surgeon or a member of a surgical team left a foreign object inside their body, the wrongful death statute of limitations rises to 3 years from the day on which that object was discovered or should have been discovered. The rule on this also states that no object left inside in a patient for more than 10 years before its discovery can serve as the basis for a wrongful death claim.

In every scenario, missing the applicable statute of limitations invalidates a wrongful death claim. Virginia courts automatically dismiss cases brought after the deadline for doing so has passed.

Which types of damage claims are allowed in a Virginia wrongful death case?

Here, allow us to directly quote Section 8.01-52 of the Virginia Code, which is titled “Amount of damages”:

The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:

  1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
  2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
  3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
  4. Reasonable funeral expenses; and
  5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.

All or some of these damages may be awarded. The judge or jury is empowered to apportion the money to people who are named in the lawsuit as beneficiaries.

EJL