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Do I Need an Autopsy for a Medical Malpractice/Wrongful Death Lawsuit?

Wednesday, January 17th, 2024

Our firm is often asked whether it is necessary to have an autopsy performed on your family member if he or she passes away, and you suspect that medical malpractice was the cause of your loved one’s death. The short answer is, that it is not a legal requirement in Virginia; however, wrongful death attorneys will agree that it is highly recommended. A wrongful death claim based upon medical malpractice is a claim that is brought when a family member dies as a result of the negligence of a healthcare provider.

To have a meritorious medical malpractice action in Virginia, you must be able to successfully prove that one or more of the healthcare providers who treated your loved one committed “malpractice” and that that malpractice was a “proximate cause” of your loved one’s death.  

Proximate Cause

“Malpractice” is defined as the failure of a healthcare provider to act with a degree of skill and diligence of a reasonably prudent healthcare provider. The mere fact that your loved one died, does not by itself show malpractice. A “proximate cause” is defined as a cause which in natural and continuous sequence produces the injury and damage (death) and without which the death would not have occurred.

An autopsy, which would be performed after your loved one’s death, can be invaluable in proving not only that malpractice was the cause of death, but also would help establish proximate cause. It is the burden of the person bringing the lawsuit to prove that there was not only malpractice involved in your loved one’s care but also that the malpractice was the proximate cause of his or her death. The purpose of an autopsy is to determine the most likely cause of death which will also include examining the major contributing factors to the death and whether or not that death was a natural or accidental death or the direct result of medical negligence. Sometimes, the lack of an autopsy would prevent an attorney from having the necessary evidence to file and successfully pursue a medical malpractice case.

Avenues of Approach

When a family member suspects that there might be medical malpractice involved in a loved one’s death, there are several avenues that can be pursued to arrange for an autopsy. If your loved one is hospitalized, the doctor or in-house pathologist for the hospital can perform the autopsy. There could be bias involved in this “in-house” autopsy as the hospital employee performing the autopsy might be biased in favor of the healthcare institution that is responsible for your loved one’s death.

Other options for having an autopsy performed would be to hire a private pathologist, or have the local coroner or medical examiner perform the autopsy. If your family is contemplating a wrongful death suit based upon malpractice, it would be wise to begin investigating these options prior to your loved one’s death if his or her death is imminent.  

Making these arrangements once your loved one has expired, is often difficult. Experienced medical malpractice attorneys can help you investigate and decide whether the hospital would be the appropriate institution to perform an autopsy, whether the medical examiner or coroner would be willing to perform the autopsy or whether a private pathologist would be the best avenue. If a private pathologist would be the best option, an experienced medical malpractice attorney can make arrangements to engage the services of a qualified private pathologist.

Do I Need an Autopsy Article

Conclusion

Our wrongful death attorneys in Virginia can help you make all of these decisions. We also can help arrange a private autopsy if that is determined to be necessary.

If an autopsy has already been performed, we can review the autopsy report and give you our opinion of whether this would be an economically viable wrongful death case that we believe would be a potentially successful case that would result in a settlement or jury verdict.

In Virginia, there is a two-year statute of limitations for the filing of all wrongful death cases. Therefore, you would have two years from the death of your loved one to file a wrongful death case or it would be forever barred. In a wrongful death case based on medical malpractice, even though you have two years to file a lawsuit, we highly recommend that a potential wrongful death case should be investigated immediately after your loved one’s death to arrange for an autopsy and examine the medical evidence while it is still fresh.

If you have lost a family member as a result of medical malpractice, please contact us or call 540.983.9300. Our initial consultation is always free and confidential. We have a team of experienced Virginia wrongful death attorneys who would be more than happy to assist you.

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What is a Wrongful Death Lawsuit in Virginia?

Thursday, November 30th, 2023

In Virginia, a wrongful death lawsuit is a lawsuit brought by the personal representative of the decedent’s estate to recover damages for the circumstances causing the decedent’s death.[1] A Virginia wrongful death case can arise from various circumstances: a truck driver’s negligence may cause the death of a motorist, a doctor’s medical malpractice may cause the death of a patient, a manufacturer’s defective product may cause the death of its user, etc. Even intentional acts, such as murder, can give rise to a wrongful death case. It is important for the personal representative and the surviving family members to consult with experienced wrongful death attorneys who specialize in handling such cases. Wrongful death attorneys can provide guidance and support in navigating the legal process and seeking justice and compensation for the loss of a loved one.

1. Who Can Sue for Wrongful Death?

Only the personal representative of the deceased person’s estate can work with a Virginia wrongful death attorney to bring a wrongful death lawsuit, except a lawsuit for fetal death can be brought by the natural mother of the fetus.[2] A personal representative has a fiduciary duty to distribute the assets of the estate in accordance with Virginia law.[3] There are two types of personal representatives: (1) executors, and (2) administrators. An executor is the personal representative named in the decedent’s will.[4] An administrator is a personal representative who is appointed by the circuit court clerk if the decedent dies without a will or the decedent’s will fails to name an executor.[5] In Virginia, there are several ways to qualify as an administrator to obtain the authority to bring a wrongful death lawsuit.[6] A Virginia wrongful death lawyer can properly advise you as to whether you have the ability to qualify as an executor or administrator of the decedent’s estate, and if so, which method of qualification is appropriate for your specific circumstances. It is important to note that there are various technical requirements that must be followed when qualifying as an administrator. For example, if you qualify as an administrator in the incorrect circuit court, then your wrongful death case could potentially be dismissed.

2. Who Receives the Proceeds from a Wrongful Death Lawsuit?

The proceeds from a settlement or verdict in a Virginia wrongful death case go to the statutory beneficiaries of the decedent’s estate. The Virginia statute outlining the statutory beneficiaries in a wrongful death case is complex, but it can be boiled down to three classes of beneficiaries.

The first class of beneficiaries consists of the following:

  1. The decedent’s surviving spouse;
  2. The decedent’s children;
  3. The children of any deceased child of the decedent;
  4. If the decedent leaves behind at least one individual listed in (1) through (3) above, then the decedent’s parents who regularly received support or services from the decedent for necessities (such as living expenses, food, shelter, etc.) within 12 months prior to the decedent’s death are also included; and
  5. If the decedent leaves behind at least one individual listed in (1) through (3) above, then the decedent’s other relatives who lived with the decedent and were primarily dependent on the decedent for support or services are also included.[7]

If the decedent does not leave behind a spouse, a child, or a child of any deceased child, then the proceeds will go to the second class of beneficiaries, which consists of the following:

  1. The decedent’s parents;
  2. The decedent’s siblings; and
  3. The decedent’s other relatives who lived with the decedent and were primarily dependent on the decedent for support or services.[8]

If the decedent leaves behind only a spouse and parents, but no child or grandchild, then the proceeds will go to the third class of the beneficiaries, which consists of the following:

  1. The decedent’s spouse;
  2. The decedent’s parents; and
  3. The decedent’s other relatives who lived with the decedent and were primarily dependent on the decedent for support or services.[9]

If the decedent does not leave behind anyone in the three classes of beneficiaries above, then the beneficiaries are determined by Virginia’s law of intestate succession under Virginia Code § 64.2-200.[10]

The jury will determine the proportion of the jury’s award that each statutory beneficiary will receive, but if the jury fails to make such a determination, then the judge will specify the distribution.[11] It should be noted that if the parties in a wrongful death lawsuit reach a settlement, the settlement must be approved by a circuit court.[12]

3. What Damages Are Available?

In a Virginia wrongful death case, the statutory beneficiaries of the decedent’s estate may be entitled to the following categories of damages:

  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’s 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.[13]

Unlike a Virginia personal injury case, damages for pain and suffering are not available in a Virginia wrongful death case.[14] Punitive damages are disfavored by Virginia courts and are only available in cases involving the “most egregious conduct.”[15] Punitive damages are capped at a maximum amount of $350,000.[16] Additionally, if the tortious conduct giving rise to the wrongful death case fall under the Medical Malpractice Act, then the total amount of damages cannot exceed the damages cap provided in Virginia Code § 8.01-581.15.

Wrongful Death Case

4. Do You Have a Wrongful Death Case?

The best way to determine whether you have a wrongful death case is to call a Virginia wrongful death law firm. Generally, a wrongful death case arises from the negligence of another that causes the decedent’s death. However, wrongful death cases can take many forms, and you may have a wrongful death case even if your loved one was intentionally killed. Virginia wrongful death attorneys can guide you through the process of qualifying as the personal representative of the decedent’s estate. After you qualify as the personal representative of the decedent’s estate, you will have the legal authority to bring a Virginia wrongful death lawsuit. Skilled wrongful death attorneys in Virginia will obtain as much evidence as possible before filing the lawsuit such as medical records, medical bills, autopsy reports, police reports, etc. Your lawyer will likely speak with any eyewitnesses or other witnesses who may help build your case against the potential defendant(s). A lawyer who specializes in personal injury or wrongful death cases will have the expertise to make critical strategical decisions, such as when to file the case, where to file the case, what to sue for, how much to sue for, and whether sending a settlement demand would be worthwhile. Our attorneys frequently handle Virginia wrongful death cases and have recovered millions of dollars for statutory beneficiaries. We understand the complexities of wrongful death law in Virginia and are dedicated to providing compassionate and effective legal representation for our clients.

[1] See Va. Code Ann. § 8.01-50; Va. Code Ann. § 64.2-519.
[2] See Va. Code Ann. § 8.01-50(C).
[3] See Va. Code Ann. § 64.2-514.
[4] See Salyers v. Salyers, 186 Va. 927, 934 (1947).
[5] See Va. Code Ann. § 64.2-500; Va. Code Ann. § 64.2-502.
[6] See Va. Code Ann. § 64.2-500; Va. Code Ann. § 64.2-502; Va. Code Ann. § 64.2-454.
[7] Va. Code. Ann. § 8.01-53.
[8] Id.
[9] Id.
[10] Id.
[11] Va. Code Ann. § 8.01-54.
[12] Va. Code. Ann. § 8.01-55.
[13] Va. Code Ann. § 8.01-52; see Va. Civil Model Jury Instruction No. 9.100.
[14] See Va. Code Ann. § 8.01-52.
[15] Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992).
[16] Va. Code Ann. § 8.01-38.1.

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