A serious injury does not always cause death right away, and in some cases the cause of death may be unrelated to the pending personal injury they have suffered. A person may live for months or years before complications of the original injury become fatal.
When that happens, a Virginia Beach wrongful death attorney must examine the date of the injury as well as the date and cause of death. Virginia law may allow a wrongful death lawsuit to be filed after the normal deadline for the original personal injury claim would have passed, provided the injured person died while that personal injury claim was still viable. When discussing which limitation period applies, it’s important to establish whether the family believes the death resulted from the underlying injury claim or instead believes the death was from an unrelated cause, like a heart attack or stroke, for a couple of examples.
Virginia generally gives an injured person two years to bring a personal injury suit. Under Virginia Code § 8.01-243(A), the period usually begins when the cause of action accrues. In many accident cases, that is the date the injury occurred.
Wrongful death claims use a different starting date. Virginia Code § 8.01-244(B) generally requires the decedent’s personal representative to file the wrongful death action within two years after the injured person dies, not within two years of being first injured.
These deadlines can lead to very different statute of limitations analysis when an injured person survives for a long time before dying and where the cause of death is from the injury caused by another party’s negligence.
Not exactly. Virginia Code § 8.01-244(A) does not simply add time to the original personal injury claim. Instead, it permits a wrongful death action when the person dies because of the negligently caused injury while the personal injury claim is still viable and no personal injury action is pending.
In that setting, the personal representative normally has two years from the date of death to file a wrongful death action. This can create a filing window that reaches well beyond two years from the date of injury.
The distinction is important. The claim is no longer an ordinary personal injury action. It is a wrongful death action based on the same conduct that caused the original injury and the later death. Virginia’s Wrongful Death Act applies when wrongful conduct causes a death that would have supported a personal injury claim if the injured person had survived, but it also sets forth exactly what type of damages can be recovered.
Suppose a person is badly hurt in a collision on January 10, 2023. The ordinary personal injury deadline would generally fall on January 10, 2025. If the person dies from the collision injuries on August 1, 2024, Virginia Code § 8.01-244 may allow the personal representative to file a wrongful death action by August 1, 2026. The lawsuit could therefore be filed more than three years after the collision and still be timely because the wrongful death period began on the date of death. Assume no personal injury action was pending when the person died.
A Virginia Beach wrongful death attorney would need to confirm that the collision injuries caused the death. The attorney would also check whether another statute creates an earlier or different deadline. The rule does not apply automatically whenever an injured person later dies.
The process is different when the injured person filed a timely personal injury lawsuit before dying from the underlying negligent act. Virginia Code §§ 8.01-25 and 8.01-56 state that when the person dies from the injury involved in the pending case, the pleadings should be amended so the case proceeds as a wrongful death action, not as one for the personal injuries of the deceased person, which is commonly called a “survival” action.
The family does not usually begin a second lawsuit based on the same fatal injury. Instead, the pending case is changed to reflect the death. Virginia law also allows only one recovery for the same injury.
An attorney must also determine whether the death resulted from the injury described in the pending case.
No. Virginia Code § 8.01-229(B) contains separate rules that may extend certain claims after a person dies. One provision allows a personal representative to file a personal action before the original deadline under the statute of limitations expires or within one year after qualification, whichever date is later.
The statute limits how long a delayed appointment can affect the filing period. If more than two years pass between the death and the qualification of the personal representative, the representative is treated as having qualified on the final day of that two-year period.
These rules may apply when a personal injury claim survives because the person died from an unrelated cause. The personal injury claim must still have been timely (or viable) when the person died.
The later filing period depends on proof that the original injury caused the death. A long gap between the accident and the death does not defeat a wrongful death claim by itself, provided the underlying personal injury claim was still viable when the person died. It can make medical evidence more difficult to obtain.
Medical records may show how the person’s condition changed. Treating physicians may explain whether the death resulted from the original trauma or a complication tied to it. A retained expert may also be needed.
The cause of death can decide which type of claim exists. It can also decide which deadline applies. If the death was unrelated to the injury, the estate may need to pursue a survival personal injury claim instead of a wrongful death claim.
These deadlines and rules can be exceedingly complicated, so any family facing such decisions should consult one of our attorneys at the earliest possible opportunity.
Virginia Code § 8.01-50 requires the action to be filed in the name of the decedent’s personal representative. A representative may also be a close family member, but the representative is not compensated for taking this role; instead, the statute governs who are beneficiaries, such as a spouse, children of the deceased, and parents or siblings. Consult with one of our attorneys on beneficiary issues.
Estate qualification should begin promptly, and we guide our clients in this process. The court appointment gives the representative legal authority to pursue the claim.
Virginia Code § 8.01-52 permits compensation for losses caused by the death. Damages may include sorrow and mental anguish. They may also include lost income and services. Medical expenses and funeral costs may be recovered as well. Virginia does not allow pain and suffering recovery in a wrongful death case, but such damages are allowed in survival actions (for personal injuries of the decedent when death is caused by an unrelated condition to the underlying negligent act).
Records should be preserved early. Witnesses should also be contacted while they can still recall what happened.
The exceptions discussed here can provide more time after a death, but it should not be treated as permission to wait to act. The cause of death can change the deadline. The timing of estate qualification may affect the time for filing the claim. Other statutes may also impose separate requirements.
Shapiro, Washburn & Sharp has represented Virginia families whose loved ones survived an injury for a period before dying. In one case, a 68-year-old patient suffered severe bleeding during a medical procedure. She survived for three days but never regained consciousness. The firm secured a $1.3 million wrongful death settlement for her family.
The time between the original injury and the person’s death can affect which claim must be filed, and what type of damages can be recovered. It can also affect the filing deadline. Shapiro, Washburn & Sharp can review the injury date and the date of death, and advise a family about the options and the deadlines. Contact one of our Virginia Beach wrongful death attorneys as soon as possible so the correct deadline can be calculated before time runs out.
A serious injury does not always cause death right away, and in some cases the cause of death may be unrelated to the pending personal injury they have suffered. A person may live for months or years before complications of the original injury become fatal. When that happens, a Virginia Beach wrongful death attorney must…
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