The questions on this page were answered by our team of Virginia Beach & Norfolk personal injury attorneys. The questions are categorized by practice area such as car accidents, medical malpractice, wrongful death, etc. If you have specific questions about your situation, contact our firm to set up a free consultation with an actual attorney.
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How do courts handle Virginia wrongful death cases?
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.
- What Is a Wrongful Death Claim?
- 4 Fundamental Elements of a Successful Virginia Wrongful Death Case
- How a Personal Injury and Wrongful Death Lawyer Builds a Client’s Case
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:
- 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:
- Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
- Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
- Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
- Reasonable funeral expenses; and
- 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.
Legal Classifications of Death: What is a medical malpractice death?
A medical malpractice death occurs when a person sustained fatal injuries or complications as a result of an error or negligence in a medical procedure or treatment. The family of the victim can pursue a medical malpractice lawsuit and seek damages for medical expenses, loss of income of the victim, pain and suffering, and more.
Legal Classifications of Death: What is a wrongful death?
A wrongful death occurs when a person dies as the result of intentional or unintentional actions or behaviors of another party or parties. For example, a driver who gets behind the wheel after they have been drinking and causes a crash that kills another driver.
In these cases, the next of kin of the victim can pursue damages in a wrongful death against those responsible. A wrongful death action is separate from any criminal charges the alleged at-fault party may be facing. In some cases, the at-fault party may not even be charged criminally, or they may be found not guilty. This does not affect the civil action.
Legal Classifications of Death: What is an accidental death?
An accidental death occurs when a person dies because of an unanticipated and unusual event. Some of the different types of accidental deaths that can occur include the following:
- An accidental injury that leads to a death
- Fatal disease or infection that develops as a result of an accidental injury
- Accidentally drowning
If the death is caused by an accident that was not caused by negligence or recklessness, then there is no liable party to pursue damages against.
When can a private autopsy be requested in Virginia?
An authorized individual (primarily, a family member) can request a private autopsy at any time after a medical examiner who works for the Virginia Department of Health has completed a postmortem examination.
- Understand Virginia’s Laws on Autopsies
- Autopsy Reform Needed: Mysterious Deaths and Family Autopsy Rights
- When Should You Request an Autopsy in Virginia?
Medical examiners work in each Virginia city and county. Section 321.-283 of the state code gives an ME discretion to perform a full autopsy on any person who dies
- From trauma, injury, violence, poisoning or accident;
- From suicide;
- From homicide;
- Suddenly when in apparent good health;
- When unattended by a physician;
- In jail, prison or some other correctional institution;
- In police custody;
- While receiving services in a state hospital or training center;
- From burns or smoke inhalation in a fire;
- Under any suspicious, unusual or unnatural manner; or
- Suddenly as an apparently healthy infant.
Other statutes require autopsies by ME in some of the listed scenarios. Families can request autopsy reports from MEs, and the conduct of an autopsy by an ME does not prevent a private postmortem examination.
Why would someone request a private autopsy in Virginia?
Each person who dies does not receive an autopsy. When a hospital or medical examiner does perform a postmortem examination, the findings may be incomplete or in need of confirmation. Ordering a private autopsy allows a person who thinks that grounds for bringing a wrongful death lawsuit exist to gather evidence to support claims for compensation and monetary damages.
Autopsies accomplish one of two things—and, often, both of those.
First, an autopsy can reveal the cause of death. At the same time, an autopsy always rules out potential causes of death. Within the context of a Virginia wrongful death lawsuit, knowing why the victim died can make all the difference. Knowing what did not kill the victim is equally important.
In medical malpractice cases, for instance, an autopsy will rule an overdose of medication in or out as the cause of death. Likewise, an autopsy following a suspected surgical error can reveal damage done by negligent use of scalpels or lasers.
Who can request a private autopsy in Virginia?
After a person dies in Virginia, Section 54.1-2973 of the state code empowers the following individuals to “authorize and consent to a postmortem examination and autopsy on a decedent's body for the purpose of determining the cause of death of the decedent, for the advancement of medical or dental education and research, or for the general advancement of medical or dental science”:
- The spouse,
- An adult son or daughter,
- A parent,
- An adult brother or sister,
- A person who acted as a guardian of the deceased person at the time of the person’s death, and
- An individual who has legal authority to dispose of the body.
This list is ranked. In other words, a wife or husband has more authority to request an autopsy than does a child; a child has more authority than a parent; and so forth. Also, higher-ranked individuals can overrule lower-ranked individuals on decisions regarding the performance of an autopsy.
What types of injuries result from swimming pool accidents caused by negligence?
In addition to fatal drownings, there are other injuries that can occur that leave victims with severe and often permanent injuries. Near drownings leave victims in a state of being unable to breathe and with no heartbeat. Although resuscitation may help the victim to begin breathing again, they often suffer deprivation of oxygen to the brain, leaving them with severe mental and physical injuries.
What are the most frequent causes of swimming pool drownings?
- Defective drains which cause suction drownings
- Diving board accidents
- Failure to supervise
- Negligent lifeguarding
- No fence around the pool
- Overcrowded pools
- Poor water depth markers
- Slippery surfaces
How prevalent are non-boating drowning accidents?
According to statistics from the Centers for Disease Control and Prevention (CDC), there are approximately 10 non-boating drowning deaths that occur each day in this country. Many of these incidents occur in swimming pools and many of the victims are young children.
These incidents spike during the summer months. In 2017, 163 children younger than 15 years of age fatally drowned in swimming pools. Seven of those victims lived here in Virginia.