Centra Health, Inc. v. Mullins

Present: All the Justices

CENTRA HEALTH, INC.,
T/A LYNCHBURG GENERAL
HOSPITAL
OPINION BY
v. Record No. 080008 JUSTICE LAWRENCE L. KOONTZ, JR.
January 16, 2009
LEONARD J. MULLINS, ADMINISTRATOR
OF THE ESTATE OF LEONARD MULLINS,
DECEASED, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge

In this appeal involving a medical malpractice action,

the principal issue we consider is whether the circuit court

erred in failing to require the administrators of a decedent’s

estate to elect between their alternative claims for wrongful

death, Code § 8.01-50, and a survival action for personal

injuries to the decedent, Code § 8.01-25, which the

administrators alleged arose from the same acts of medical

negligence. We further consider whether the circuit court

erred in not striking the administrators’ evidence on the

survival claim and in subsequently confirming the jury’s

verdict in favor of the administrators on that claim.

BACKGROUND

A prevailing party that comes before us with a jury

verdict approved by the trial court “stands in the most

favored position known to the law.” Bitar v. Rahman, 272 Va.
130, 137, 630 S.E.2d 319, 323 (2006)(internal quotation marks

omitted). Accordingly, since the jury in this case returned

its verdict for the administrators, “we view the evidence and

all reasonable inferences deducible therefrom in the light

most favorable to the [administrators], the prevailing

part[ies] at trial.” Lo v. Burke, 249 Va. 311, 318, 455

S.E.2d 9, 13 (1995).

On November 3, 2004, Leonard Mullins, age 84, was

admitted to Lynchburg General Hospital, a medical facility

operated by Centra Health, Inc., for treatment of a broken hip

sustained in a fall. As a result of negligence by hospital

staff in the insertion and maintenance of a Foley catheter, a

thin tube placed into the bladder to drain urine, Mullins

developed a urinary tract infection. Following surgery to

repair the broken hip, hospital staff failed to timely remove

the catheter as ordered and failed to recognize and report the

development of the urinary tract infection. Mullins was

discharged from the hospital on November 12 to be transferred

to a nursing home. Mullins was readmitted to the hospital on

the following day for treatment of the continuing urinary

tract infection and remained there until his death on November

21, 2004.

On June 10, 2005, Leonard J. Mullins and Elizabeth P.

Shergill, Mullins’ son and daughter, qualified as co-

2
administrators of Mullins’ estate. On December 1, 2005, the

administrators filed a motion for judgment 1 against Centra

Health alleging that the negligence of its employees

proximately caused personal injuries to Mullins. The

administrators asserted a claim for wrongful death, alleging

that Mullins’ death was the result of sepsis caused by the

urinary tract infection, and an alternate survival claim for

the personal injuries sustained by Mullins prior to his death

as a result of the hospital’s negligent treatment resulting in

the urinary tract infection and its attendant complications.

The administrators requested a jury trial.

Thereafter, Centra Health filed an answer and grounds of

defense. Centra Health denied generally that its employees

had been negligent or that any negligence had caused Mullins’

injuries or his death. Centra Health further averred that it

would rely on the theory that Mullins’ death resulted from an

intervening cause as an affirmative defense to the wrongful

death claim.

1
This case was filed before we amended our rules,
effective January 1, 2006, to provide that a civil action,
which includes legal and equitable causes of action, is
commenced by filing a “complaint.” Rules 3:1 and 3:2; see
also Ahari v. Morrison, 275 Va. 92, 96 n.2, 654 S.E.2d 891,
893 n.2 (2008).

3
 Along with its answer and grounds of defense, Centra

Health filed a motion requesting that the circuit court compel

the administrators to elect between the survival and wrongful

death causes of action. Citing Hendrix v. Daugherty, 249 Va.

540, 547, 457 S.E.2d 71, 75 (1995), Centra Health maintained

that because the administrators could “not recover for the

same injury under the survival statute and the wrongful death

statute,” an election was required at some point prior to

trial.

In a memorandum of law, the administrators responded to

Centra Health’s motion. The administrators contended that no

election between the survival and wrongful death causes of

action was required until after the jury had received the

evidence and a verdict had been returned. The principal

support for this contention was by citation to prior case

decisions from various circuit courts. Additionally, the

administrators asserted that our decision in Lucas v. HCMF

Corp., 238 Va. 446, 449-50, 384 S.E.2d 92, 94 (1989),

supported their position that a personal injury survival claim

and a wrongful death claim could be presented to the trier of

fact when the defendant contested the issue whether the

alleged negligence that purportedly injured the decedent also

contributed to the decedent’s death. The administrators

conceded that “if Mullins’ injuries caused his death, the

4
[administrators] are entitled to recover only on a wrongful

death claim.” However, the administrators maintained that so

long as Centra Health contested the issue of proximate

causation with respect to the wrongful death claim, the

administrators should be entitled to proceed on both claims

and to have the issue of proximate causation decided by the

jury.

Pursuant to a pre-trial scheduling order, the

administrators filed a designation of expert witnesses.

Darlene Hinton, R.N. was designated as a standard of care

expert and Dr. Daniel Pambianco was designated as a causation

expert. According to the designation, Dr. Pambianco would

testify that as a result of the failure to perform under the

standard of care that would be established by Hinton’s

expected testimony, “Mullins was permitted to develop a

massive urinary tract infection, ileus,[2] and nutritional

compromise, from which his death resulted.” The

administrators further reserved the right to elicit testimony

2
Ileus, in general terms, is a condition that is commonly
marked by painful distended abdomen, vomiting of dark or fecal
matter, toxemia, and dehydration and that results when the
intestinal contents back up because peristalsis fails although
the lumen is not occluded. See Merriam-Webster’s Medical Desk
Dictionary 324 (1993).

5
from Mullins’ health care providers or expert witnesses called

by Centra Health.

On June 29, 2007, Centra Health filed a memorandum of law

in support of its motion to compel the administrators to elect

between the survival and wrongful death causes of action.

Centra Health contended that because the administrators could

not recover for the same injury under both causes of action,

the administrators should not be permitted to present evidence

of the differing elements of damages under each cause of

action to the jury. Centra Health asserted that permitting

the administrators to present such evidence would result in

prejudice to Centra Health because “[i]t is unreasonable to

believe that the jury would be able to successfully absorb all

of the [administrators’] proposed evidence, some of which is

only relevant to the survival action, and some of which is

only relevant to a wrongful death action, compartmentalize it

based upon the different theories of the case, and reach a

true verdict.” In the alternative, Centra Health contended

that because the administrators would present expert testimony

that the alleged negligence of the hospital staff was the

cause of Mullins’ death, the court should dismiss the survival

action because “Virginia law mandates that the

[administrators] proceed to trial on only a wrongful death

cause of action.”

6
 Responding to Centra Health’s contentions, the

administrators asserted that they were “not required to elect

between a survival action or wrongful death action before

trial if the evidence supports both recoveries.” This was so,

the administrators maintained, because Centra Health continued

to contest that the negligence of its employees caused

Mullins’ death and, thus, “the jury should be permitted to

resolve all disputed issues of causation.”

On July 6, 2007, the circuit court conducted a hearing on

Centra Health’s motion to compel the administrators to elect

between the survival and wrongful death causes of action. 3

Following brief arguments in which the parties reiterated the

positions taken in their memoranda of law, the court overruled

Centra Health’s motion, stating that it was inclined to “send

the case to the jury under both theories at this point.” The

court noted, however that it could revisit the issue whether

an election was required “once we get into the evidence” or on

a motion to strike the evidence at the conclusion of the

administrators’ case.

3
The circuit court did not directly address Centra
Health’s alternative assertion that the court should dismiss
the survival action based on the administrators’ designation
of expected expert testimony. Centra Health did not assign
error to the court’s failure to rule on this issue and,
accordingly, we will not address it further in this opinion.

7
 A jury trial on the administrators’ motion for judgment

was held on July 10, 11 and 12, 2007. As relevant to the

issues raised in this appeal, Dr. Pambianco testified that

Mullins received “poor catheter care . . . which increased the

chance of urinary tract infection and contributed to it.” 4 He

further testified that because hospital staff failed to

recognize that Mullins had developed the infection, Mullins

“developed multisystem failure and a systemic infection” which

developed into sepsis, an infection of the blood, prior to

being discharged from his first hospitalization. Mullins also

developed ileus, causing him to suffer “abdominal pain and

discomfort” and distention of his abdomen. He also

experienced “delirium during the course of his [first]

hospitalization” resulting from changes in blood pressure and

his body’s other responses in an attempt to fight the

infection. Dr. Pambianco concluded that the negligence of

Centra Health’s employees during the first hospitalization

4
Hinton testified regarding the standard of care for
nursing staff relevant to the use of a Foley catheter,
following and documenting actions taken upon physician’s
instructions, and observing, detecting and treating a
patient’s urinary tract infection. Centra Health did not
assign error challenging the sufficiency of the evidence to
support the jury’s determination that its employees violated
this standard of care in the treatment of Mullins.
Accordingly, the jury’s determination that the hospital staff
was negligent is not at issue in this appeal.
8
“culminated in [Mullins] developing a serious infection that

overwhelmed his body and was the cause of his death.”

Counsel for the administrators then asked Dr. Pambianco,

“What would have been the effect of the additional Foley

[catheter] care that was not provided during the second

hospitalization, either as it relate[d] to Mr. Mullins’ cause

of death or as it related to additional injury to Mr.

Mullins?” Dr. Pambianco stated that while proper care might

have improved Mullins’ ability to fight off the infection, he

believed that Mullins’ death probably could not have been

avoided during the second hospitalization as “any chance he

would have had to recover at that juncture would have been

diminished.” He further testified, however, that had Mullins

received proper medical care for the urinary tract infection

during the first hospitalization, he would not have required a

second hospitalization. Thus, Dr. Pambianco opined that it

was the failure to recognize and treat the infection that

directly contributed to Mullins’ death.

During cross-examination, counsel for Centra Health asked

Dr. Pambianco whether Mullins’ medical records established

that Mullins suffered from various other medical conditions,

including age-related cerebral atrophy, hypertension,

degenerative joint disease, and chronic anticoagulation. Dr.

Pambianco confirmed that, based on his review of the medical

9
records, Mullins had suffered from those conditions, had

undergone an aortic valve replacement, and had a history of

atrial fibrillation and suffered a mild congestive heart

failure. Dr. Pambianco further agreed that at the time of the

initial admission to the hospital, Mullins’ health was

“guarded” and that given his medical history and age, Mullins

had “a fairly high mortality and morbidity rate” as a result

of his undergoing treatment for the fracture of his hip.

The administrators presented extensive evidence with

respect to damages for the wrongful death. This evidence came

principally in the form of loss of solace testimony from the

administrators, their sisters Mary Harris, Ann Thomas, and

Helen Sud, and their mother, Helen G. Mullins. These

witnesses also testified as to Mullins’ pain and suffering

during his two hospitalizations in support of the damages

claimed for the survival action.

At the conclusion of the administrators’ case-in-chief,

Centra Health renewed its motion to compel an election between

the causes of action and also moved to strike the evidence as

to the survival action. Centra Health also asserted that as

Dr. Pambianco had testified that the alleged negligence had

resulted in Mullins’ death “it would be appropriate to strike

the surviv[al] claim.” The administrators, while agreeing

that there could only be one recovery, contended that both

10
causes of actions should be submitted to the jury “to resolve

the disputed issue of causation.” The circuit court overruled

both the renewed motion to compel election and the motion to

strike, stating that it would “instruct the jury that it’s an

alternative damage situation.”

Centra Health presented expert testimony on proximate

causation from Dr. William A. Petri, Jr. and Dr. Malcolm

Cothran. Doctors Petri and Cothran both opined that Mullins’

death resulted from his pre-existing medical conditions,

rather than as a result of the urinary tract infection.

At the conclusion of its evidence, Centra Health again

renewed the motion to compel an election between the two

causes of action. The circuit court overruled the motion,

stating “we have got a situation where we have a classic jury

issue on causation and whether it’s a wrongful death and/or

survival action . . . there’s evidence both ways.”

The circuit court granted instructions proffered by the

administrators that directed the jury to first consider

whether Centra Health, through its employees, had been

negligent in failing to provide an appropriate standard of

care to Mullins and, if so, whether that “negligence was a

proximate cause of injury or death to Leonard Mullins.” In

Instruction No. 16, which it later referred to as “the

wrongful death damages [instruction],” the court advised the

11
jury as to the evidence it could consider in awarding damages

for wrongful death including “the sorrow, mental anguish, and

loss of solace suffered by” Mullins’ family, expenses for his

hospitalization incident to the injuries that resulted in his

death, and funeral expenses. Similarly, in Instruction No.

17, “the survival damage[s] instruction,” the court advised

the jury that if it were to award damages for personal

injuries to Mullins “that did not cause his death,” it should

only consider the effect of those injuries on Mullins’ health,

his pain, suffering and inconvenience, and the medical

expenses he incurred as a result. Centra Health noted its

objection to these instructions, but did not request a

separate instruction expressly cautioning the jury that if it

chose to award damages under one theory it should disregard

the damages evidence relevant to the other cause of action.

After the circuit court read the two damages instructions

to the jury, the court provided this additional guidance:

They [the two damages instructions] are effectively
going to be mutually exclusive. If you decide to
award damages, you can do it under one.

If you find negligence caused the death, you
can do it under [the wrongful death damages
instruction]. If you find it just caused the
injury, you can do it under [the survival damages
instruction], but you can’t do both. You’ve got to
choose. That’s a jury issue for [you] to resolve,
and you have to determine one or the other.

12
 That will become apparent on the verdict form,
but you don’t award either unless you find for the
plaintiffs and that the defendant was negligent.

The jury was given a multi-part verdict form, prepared by

the administrators, that provided for alternative verdicts on

either wrongful death or the survival personal injury claims.

The verdict form directed the jury to complete only one of the

two sections, the first of which permitted the jury to make

individual awards to Mullins’ widow and children as well as

awards for medical and funeral expenses, while the second

directed the jury to award damages in accord with the

instruction for the personal injury survival claim. Each part

also permitted the jury to render a verdict for Centra Health.

The verdict form expressly referenced the two instructions

detailing the source of damages for each claim. In objecting

to the verdict form Centra Health stated that it would

“incorporate by reference [its] previous arguments” concerning

its contention that the administrators should be required to

elect between the two causes of action before the case was

submitted to the jury.

The circuit court gave the jury the following guidance

with respect to its consideration of the verdict and how to

render its decision on the verdict form:

[W]e have a verdict form and it’s a little more
complicated than the normal civil case because it has
a Part A and Part B to it.

13
 The Part A part is involving the wrongful death,
and the Part B is what we call a survival action or
injuries before Mr. Mullins died.

The jury . . . has got to decide whether or not
there is any negligence, violation of [the] standard
of care. And if that standard of care was violated,
did it cause [Mullins’] injury or did it cause his
death.

The circuit court then directed that if the jury found

that Centra Health was not liable for either Mullins’ death or

any injury to him, it could indicate this by rendering its

verdict for Centra Health under either of the two parts of the

verdict form. The court further instructed that if the jury

“decide[d] that the hospital is responsible, through its

nurses, for the wrongful death of Mr. Mullins,” it was to

apportion the damages for the wrongful death among his

survivors and to award damages for the medical and funeral

expenses on the “wrongful death” part of the verdict form.

If, however, the jury found that Centra Health had been

negligent in its care of Mullins, but “his death wasn’t the

result of any negligence or causation of the hospital

nurse[s],” the jury should award damages under the “survival

action” part of the form.

When the jury returned its verdict, consistent with the

instructions on the verdict form and the directions of the

circuit court, it rendered a verdict only on one of the two

14
claims. In reading the verdict, the circuit court noted, “On

Part A [the wrongful death claim] there is no verdict. Part B

[the survival personal injury claim], we the jury, on the

issues joined, instruction number 17, find the verdict in

favor of the plaintiff and set his damages at [$]325,000.”

After the jury was dismissed, Centra Health was given leave to

file post-trial motions within fifteen days.

On July 23, 2007, Centra Health filed a motion to set

aside the verdict. Therein, Centra Health contended both that

the verdict on the personal injury survival claim was

excessive and that it was not supported by “any expert

testimony that the negligence of the [hospital staff] injured

Mr. Mullins but did not result in his death.” Centra Health

maintained that the verdict was excessive because the jury

“was clearly influenced by the testimony of the pain and

suffering of the statutory beneficiaries, which evidence is

inadmissible in a surviv[al] cause of action.”

In a responding memorandum of law opposing Centra

Health’s motion to set aside the verdict, the administrators

contended that there was ample evidence in the record that the

negligence of the hospital staff injured Mullins causing both

his physical suffering and additional medical expenses. The

administrators further contended that the jury’s determination

that Mullins was injured by the hospital staff’s negligence

15
was supported by the testimony of Centra Health’s expert

witnesses, who had testified to the medical consequences of

the urinary tract infection, and by the testimony of family

members who observed Mullins’ pain and suffering. Conceding

that “[t]he jury concluded [that] the [hospital staff’s]

negligence injured Mullins, but did not cause his death,” the

administrators nonetheless contended that, because Centra

Health contested the issue of causation, the circuit court had

properly allowed the loss of solace testimony that was

relevant only to damages for wrongful death as the jury could

have concluded that Centra Health was liable for Mullins’

death.

Thereafter, the circuit court conducted a hearing on

Centra Health’s motion to set aside the verdict. At the

conclusion of the hearing, the court ruled that there was

sufficient evidence to support the jury’s verdict awarding

damages on the survival action and that the damages awarded

were not excessive.

In an order dated October 2, 2007, the circuit court

entered a final judgment on the jury’s verdict awarding the

administrators $325,000. We awarded Centra Health this

appeal.

DISCUSSION

Centra Health raises the following issues in this appeal:

16
 1. The circuit court erred by denying the
defendant’s motion to elect, and permitting the
plaintiff to submit both a wrongful death claim
and a survivorship claim to the jury, rather than
requiring the plaintiff to elect between them
prior to trial.

2. The circuit court erred by denying the
defendant’s motions to strike and/or for directed
verdict, and submitting the survivorship claim to
the jury, even though the plaintiff’s sole
medical expert unequivocally testified that the
defendant’s negligence resulted in the death of
the decedent, Mr. Mullins, and where the
plaintiff offered no expert testimony that the
negligence of the defendant injured Mr. Mullins
but did not result in his death.

3. The circuit court erred by failing to set aside
the jury's verdict of $325,000.00 on the
plaintiff’s survivorship claim as reflecting that
the jury misconceived or misunderstood the facts
or the law, and as not supported by the evidence
or the law.

We begin our discussion of these issues by reviewing the

statutory scheme and the relevant case law concerning whether

and under what circumstances the personal representative of a

decedent can maintain concurrent causes of action seeking

damages for both personal injuries suffered by the decedent

under the survival statute and for the decedent’s death

arising from the same negligent acts or omissions under the

wrongful death statute. Code § 8.01-25, which governs

survival of causes of action that accrue during a decedent’s

lifetime, provides in relevant part:

Every cause of action whether legal or
equitable, which is cognizable in the Commonwealth

17
 of Virginia, shall survive . . . the death of the
person in whose favor the cause of action existed
. . . . Provided, further, that if the cause of
action asserted by the decedent in his lifetime was
for a personal injury and such decedent dies as a
result of the injury complained of with a timely
action for damages arising from such injury pending,
the action shall be amended in accordance with the
provisions of § 8.01-56.

Code § 8.01-50, which governs actions for wrongful death

of a decedent, provides in relevant part:

A. Whenever the death of a person shall be
caused by the wrongful act, neglect, or default of
any person or corporation . . . the person who, or
corporation . . . which, would have been liable, if
death had not ensued, shall be liable to an action
. . . notwithstanding the death of the person
injured . . . .

Code § 8.01-56, which in part governs the maintenance of

a pending personal injury action as a survival action

following the death of the plaintiff, provides in relevant

part:

. . . when a person who has brought an action for
personal injury dies pending the action, such action
may be revived in the name of his personal
representative. If death resulted from the injury
for which the action was originally brought, a
motion for judgment and other pleadings shall be
amended so as to conform to an action under § 8.01-
50, and the case proceeded with as if the action had
been brought under such section. In such cases,
however, there shall be but one recovery for the
same injury.

We have previously addressed the interaction of these

three statutes in the direct appeals of Lucas v. HCMF Corp.

and Hendrix v. Daugherty, the cases principally relied upon in

18
the circuit court by the administrators and Centra Health

respectively, as well as in answering certified questions of

law from the United States Court of Appeals for the Fourth

Circuit in Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990).

Each of these cases involved a distinct set of facts, and the

holding in each case was, in part, determined by unique

circumstances that permitted this Court to address whether an

election between causes of action was required under those

particular facts, obviating the need for this Court to

undertake a broader consideration as to whether and when an

election would be required in every such case.

In Bulala, for example, the plaintiff was an infant child

who had suffered catastrophic injuries as the result of

medical malpractice during her birth. An action brought on

behalf of the child in a federal district court resulted in a

verdict awarding damages against the obstetrician attending

her birth, but the child died before the district court could

rule on post-trial motions and enter a final judgment. Id. at

223, 389 S.E.2d at 672. After the district court declined to

set aside the verdict and order a new trial to determine

damages based on wrongful death, the obstetrician appealed.

Upon referral of certified questions of law from the

United States Court of Appeals, we addressed, inter alia, the

issue of the effect, under Code §§ 8.01-21, 8.01-25, and 8.01-

19
56, of the child’s death on the district court’s ability to

enter a final judgment. We concluded that Code § 8.01-21,

which provides that “[w]hen a party dies . . . if [the death]

occurs after verdict, judgment may be entered as if [the

death] had not occurred,” permitted the district court to

enter a final judgment in the case notwithstanding the

defendant’s contention that the personal injury action was

still “pending” and, thus, that Code §§ 8.01-25 and 8.01-56

mandated that the action be converted to a wrongful death

action. Id. at 234-35, 389 S.E.2d at 678-79. We concluded

that there was no conflict between the statutes because Code

§§ 8.01-25 and 8.01-56 were enacted to extend the application

of Code § 8.01-50 to include cases not yet filed or pending at

the time of the decedent’s death, whereas Code § 8.01-21

codified the common law rule that a verdict in a case where a

party subsequently dies stands because the case “ ‘has been

completely litigated.’ ” Id. at 235, 389 S.E.2d at 679

(quoting Boyd v. Bulala, 647 F. Supp. 781, 795 (W.D. Va.

1986)).

In Lucas, an administratrix of a decedent’s estate

brought a medical malpractice survival action against a

nursing home. During the administratrix’s case-in-chief, her

medical expert agreed during cross-examination that the

negligence of the nursing home’s staff “hastened [the

20
decedent’s] death.” Lucas, 238 Va. at 449, 384 S.E.2d at 93.

Immediately following this testimony, the nursing home moved

to strike the evidence, contending that the administratrix was

required to plead a wrongful death action rather than a

survival action. The circuit court sustained the motion and

dismissed the case with prejudice notwithstanding the

administratrix’s contention that she could present evidence

from another expert to establish an intervening cause of death

or that she should be permitted to amend the pleadings and

proceed on a claim for wrongful death. Id. Subsequently, the

administratrix filed a wrongful death action, which the

circuit court dismissed on res judicata grounds. Id. at 448,

384 S.E.2d at 93.

We consolidated the subsequent appeals and reversed the

judgment of the circuit court in both cases. While we

implicitly recognized that under Code § 8.01-56 the

administratrix could not recover on both a survival claim for

personal injuries sustained by the decedent and for a claim of

wrongful death if both the injuries and the death arose from

the same negligent acts, we held that the administratrix

should have been permitted in the first suit to present

further evidence that the decedent’s death could have resulted

from an intervening cause and then have “the trier of fact

. . . resolve [the] conflicting testimony.” Id. at 450, 384

21
S.E.2d at 94. Because reversal of the judgment dismissing the

survival action eliminated the res judicata bar to the

wrongful death action, we reversed the judgment in the second

case as well. Id. at 450-51, 384 S.E.2d at 94. In remanding

both cases, however, we expressed no opinion as to whether the

administratrix should be permitted to join the two causes of

action or whether and when the administratrix would be

required to elect between them if she did so.

Most recently in Hendrix, we addressed issues concerning

concurrent survival and wrongful death actions in the context

of a claim for legal malpractice. The plaintiffs alleged that

in the underlying medical malpractice case, the defendant

attorneys were negligent in advising an election to pursue

only the wrongful death action when that cause of action was

subsequently dismissed because it previously had been

nonsuited and the refiled action was untimely under Dodson v.

Potomac Mack Sales & Service, 241 Va. 89, 400 S.E.2d 178

(1991). 5 Hendrix, 249 Va. at 542-43, 457 S.E.2d at 73.

5
In Dodson, we held that Code § 8.01-229(E)(3) did not
apply to wrongful death actions and, thus, the nonsuit of a
wrongful death action did not entitle the plaintiff to refile
within six months of the nonsuit, but could only file a new
action under the original statute of limitations period.
Dodson, 241 Va. at 94, 400 S.E.2d at 181. The General
Assembly subsequently amended the wrongful death limitation of
action statute, making the six-month period applicable. See
Code § 8.01-244(B).
22
 In the legal malpractice action, the plaintiffs alleged

alternative theories that the defendant attorneys had been

negligent either in failing to pursue the survival action or

by failing to recognize that the wrongful death action would

be time barred. The defendant attorneys contended that the

order of the circuit court in the underlying medical

malpractice action requiring an election between the two

causes of action was legally correct and, accordingly, the

plaintiffs could not be permitted to pursue a legal

malpractice action with respect to both claims, since in the

original action the plaintiffs could have prevailed under only

one claim. Id. at 546, 457 S.E.2d at 75.

Although the circuit court had disposed of the legal

malpractice case by sustaining the defendant attorneys’

demurrer to the plaintiffs’ amended motion for judgment and,

thus, had not yet required the plaintiffs to elect between the

two causes of action, in reversing and remanding the case for

further proceedings, we observed that:

The plain language contained in Code §§ 8.01-25
and -56 unequivocally mandates that a person may not
recover for the same injury under the survival
statute and the wrongful death statute. There can
be but one recovery. Hence, the plaintiffs in this
action, as a matter of law, could not have recovered
in the underlying tort action against defendants on
both theories of wrongful death and survival.
Therefore, it necessarily follows that in the
present action, at an appropriate time after
discovery has been completed, the plaintiffs must be

23
 required to elect whether they will proceed against
the defendant attorneys on the theory that the
attorneys breached a duty owed to the plaintiffs in
the prosecution of the wrongful death action or
breached a duty owed to the plaintiffs in the
prosecution of the survival action.

Id. at 547, 457 S.E.2d at 75-76 (emphasis added).

Since deciding Hendrix, we have not been afforded the

opportunity to address further the circumstances that would

constitute the “appropriate time after discovery has been

completed” at which a circuit court must require an election

between a survival personal injury claim and a wrongful death

claim. Nor have we specifically addressed whether there can

be circumstances in which that “appropriate time” might be

after the trier of fact has resolved disputed issues of

liability. However, as the parties noted in the circuit court

and on brief in this appeal, a number of circuit court cases

tried since Lucas have dealt with these and related issues,

but without any consistent agreement as to when and under what

circumstances an election of remedy would be required. 6 The

6
Compare Brothers v. Rockingham Mem. Hosp., Docket No.
CL07-00620 (Rockingham Co. Cir. Ct. March 5, 2008); McReynolds
v. Altamont Manor, Inc., Docket No. CL03-94 (Russell Co. Cir.
Ct. April 12, 2005); Williams v. Med. Facilities of America,
Docket No. CL03-3400 (Va. Beach Cir. Ct. February 16, 2005);
McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 44 Va. Cir.
453 (Fairfax Co. Cir. Ct. 1998); Thornburg v. Manor Healthcare
Corp., 37 Va. Cir. 273 (Richmond Cir. Ct. 1995); Tucker v.
Ware, 10 Va. Cir. 454 (Richmond Cir. Ct. 1988) (cases in which
an election was not required or was deferred), with Atkins v.
24
facts and the procedural posture of the present case,

therefore, provide this Court with the opportunity to address

directly the issues left unresolved by Lucas, Bulala, and

Hendrix.

At the outset, we note that the question whether an

election of remedy can be required arises only in a case where

the plaintiff brings a survival action and wrongful death

action together in a single lawsuit after the death of the

decedent. The mandatory requirement for the conversion of the

personal injury claim into one for wrongful death applies only

in those cases in which the facts establish that the “decedent

die[d] as a result of the injury complained of,” Code § 8.01-

25, and “death resulted from the injury for which the action

was originally brought,” Code § 8.01-56.

In Lucas, we recognized that under Code § 8.01-56 “there

shall be but one recovery for the same injury” for which both

personal injury and wrongful death actions might be brought by

the plaintiff. Lucas, 238 Va. at 449, 384 S.E.2d at 94; see

also Brammer v. Norfolk & W. R. Co., 107 Va. 206, 214, 57 S.E.

593, 596 (1907) (“whether that action be brought by the

Chesler, 50 Va. Cir. 365 (Charlottesville Cir. Ct. 1999);
DeRosa v. Meloni, 14 Va. Cir. 62 (Alexandria Cir. Ct. 1988);
Rhodes v. Painter, 6 Va. Cir. 68 (Fredericksburg Cir. Ct.
1983) (cases in which an election was required or recovery was
otherwise limited to a claim for wrongful death).
25
injured party in his lifetime and revived after his death

. . . or a new action be brought within the statutory period,

as provided in the statute, but one recovery can be had”).

Thus, we held that “if the injuries cause death, the recovery

must be sought under Code § 8.01-50, the wrongful death

statute.” Lucas, 238 Va. at 449, 384 S.E.2d at 94.

Nonetheless, we recognized that the plaintiff was not

constrained to bring only a wrongful death action if causation

was in doubt, and “[i]n choosing to file a personal injury

action, [the plaintiff only] had to prove the elements of that

claim to recover damages. Moreover, [the plaintiff] was

entitled to the opportunity to prove those elements.” Id. We

held that had the plaintiff been permitted to introduce

evidence in support of the survival claim, the trier of fact

would have had to resolve conflicting testimony regarding the

cause of the decedent’s death. The error of the circuit court

in Lucas was that the court essentially required an election

by the plaintiff between the survival claim and a wrongful

death claim before the contested causation issue was

determined by the trier of fact. Id. at 449-50, 384 S.E.2d at

94.

Experience suggests, however, that Lucas was atypical in

that the plaintiff initially chose to limit the theory of

recovery to personal injury only and, therefore, it was the

26
plaintiff, not the defendant, who sought to contest the issue

of causation as it related to the decedent’s death when that

issue arose. The present case is more typical in that the

administrators sought to preserve the option to pursue either

a survival action or a wrongful death action, and it is in

such cases that the appropriate time when an election is

required will most often arise. Implicit in the direction in

Hendrix that such an election will occur “at an appropriate

time after discovery has been completed” is the understanding

that the plaintiff ought not be compelled to make the election

without a full opportunity to develop its case.

Though there can be but one recovery in these cases, we

are not unmindful of Centra Health’s contention that in

permitting a plaintiff to present evidence in support of a

survival claim and a wrongful death claim when the issue of

causation is disputed, a defendant may be subject to potential

prejudice by the possibility that in a jury trial the jury

could conflate the differing elements of damages from each

claim in rendering a single verdict. We are of opinion,

however, that a defendant can obviate this potential for

prejudice by requesting that the trial be bifurcated into

separate proceedings to determine liability and damages.

Indeed, in a case where there is any doubt as to when

compelling an election would be proper, bifurcation is the

27
most practical means to assure that each party receives a fair

opportunity to present their case to the jury without

prejudice to the other. Cf. Allstate Ins. Co. v. Wade, 265

Va. 383, 393, 579 S.E.2d 180, 185 (2003) (“bifurcation . . .

is a matter for the trial court’s discretion and requires

consideration of whether any party would be prejudiced by

granting or not granting such request, as well as the impact

on judicial resources, expense, and unnecessary delay”).

Viewed in light of the foregoing analysis, we find no

merit in Centra Health’s first assignment of error asserting

that the circuit court erred in not requiring the

administrators to elect between their personal injury survival

claim and wrongful death claim. On this record, it is evident

that Centra Health vigorously contested that Mullins had

suffered any compensable injury for which a survival claim

could be successfully maintained and also that any act of

Centra Health’s employees had caused Mullins’ death. Contrary

to Centra Health’s contention, we did not hold in Hendrix that

a plaintiff would always be required to elect between remedies

prior to trial. Rather, the election is required only at a

time when the record sufficiently establishes that the

personal injuries and the death arose from the same cause. In

this particular case, the circuit court correctly determined

that compelling an election would put the administrators in

28
the untenable, and manifestly unjust, position of having to

elect between two potentially viable claims, which Centra

Health was contesting on separate and independent grounds.

Under those circumstances, there was no “appropriate time”

prior to trial at which compelling an election would not have

prejudiced the administrators and, consequently, unfairly

benefited Centra Health. Accordingly, we hold that the

circuit court did not err in denying Centra Health’s motion to

compel the administrators to elect between the survival and

wrongful death claims.

We now consider Centra Health’s contention, raised in its

second assignment of error, that the circuit court erred in

failing to strike the evidence as to the administrators’

personal injury survival claim. 7 Centra Health contends that

to prevail on the personal injury survival claim, the

administrators were required to present expert testimony that

negligent acts of the hospital employees caused injury to

Mullins that did not also result in his death. Specifically,

Centra Health maintains that Dr. Pambianco, the

administrators’ only expert witness qualified to address

7
Centra Health’s reference to the failure of the court to
grant a “directed verdict” in this assignment of error is
apparently meant to reference “summary judgment,” as directed
verdicts are not permitted in Virginia. Code § 8.01-378;
Kesler v. Allen, 233 Va. 130, 133, 353 S.E.2d 777, 779 (1987).
29
issues of causation, opined that Mullins’ death ultimately

resulted from the hospital employees’ negligence. Thus,

Centra Health further maintains that the administrators could

not rely on Dr. Pambianco’s testimony to support a claim that

this negligence also caused injuries that did not result in

Mullins’ death and were compensable under the personal injury

survival claim regardless of whether the jury ultimately found

that Centra Health was not liable for Mullins’ death. We

disagree.

In considering the testimony of a witness, “the effect of

the . . . testimony must be determined from a fair reading of

it as a whole, and not merely by reference to isolated

statements.” Crawford v. Quarterman, 210 Va. 598, 603, 172

S.E.2d 739, 742 (1970); see also Tignor v. Virginia Electric &

Power Co., 166 Va. 284, 290-91, 184 S.E. 234, 236 (1936).

While it is true that Dr. Pambianco expressed the opinion that

because the urinary tract infection was left untreated,

Mullins’ death was virtually inevitable, his testimony as a

whole cannot be characterized as stating unequivocally that

the only injury to Mullins resulting from the hospital staff’s

negligence was his death or that the multiplicity of injuries

caused by the hospital staff’s negligence all contributed to

his death. Indeed, his testimony preceding the isolated

statements upon which Centra Health relies contains a full

30
description of the injuries, pain, and suffering Mullins

endured as a result of that negligence. Dr. Pambianco’s

testimony was clear that the negligence which resulted in

these injuries was the poor Foley catheter care that permitted

the urinary tract infection to develop, while it was the

failure to detect the infection which, in Dr. Pambianco’s

opinion, led to Mullins’ condition worsening to the point that

death was inevitable.

Even when a portion of a party’s evidence is potentially

adverse to his case, that evidence must be weighed in the

context of all the evidence presented by the party. Cf.

Baines v. Parker, 217 Va. 100, 105, 225 S.E.2d 403, 407

(1976). And, especially when, as here, the party is seeking

to prove alternative theories of his case, such conflicts in

the evidence are best resolved by the jury. Cf. VEPCO v.

Mabin, 203 Va. 490, 494, 125 S.E.2d 145, 148 (1962). In light

of the fact that Centra Health continued to dispute the issue

of causation with respect to the wrongful death claim, the

jury would have been free to discount Dr. Pambianco’s

conclusion that the hospital staff’s negligence in failing to

detect and treat the urinary tract infection contributed to

Mullins’ death, while still accepting that portion of the

testimony establishing that the negligence that permitted the

infection to develop caused Mullins’ personal injuries.

31
Accordingly, we hold that the circuit court did not err in

overruling Centra Health’s motion to strike the evidence as to

the administrators’ personal injury survival claim.

Finally, we turn to Centra Health’s contention that the

circuit court erred in failing to set aside the jury’s verdict

awarding $325,000 in damages on the personal injury survival

claim on the ground that the award was excessive and not

supported by the evidence. Centra Health contends that the

jury must have misunderstood or misapplied the court’s

instructions with regard to the determination of damages for

the survival claim and improperly considered evidence that was

relevant only to the damages for wrongful death. In support

of this contention, Centra Health posits that the award is

excessive in light of the fact that the injury to be

compensated was “a urinary tract infection which lasted

eighteen days of Mr. Mullins[’] life – most of which he spent

in a comatose state.”

In our discussion above, we recognized that when a

personal representative is permitted to go forward with both a

personal injury survival claim and a wrongful death claim,

there is at least the potential that the jury could conflate

the differing elements of damage in rendering the single

verdict. In this case, however, we are not persuaded that the

jury’s verdict reflects any confusion as to the law or undue

32
sympathy based on the loss of solace evidence for the wrongful

death claim that was not relevant to damages for the survival

claim. “When it plainly appears from the record and the

evidence given at the trial that the parties have had a fair

trial on the merits and substantial justice has been reached,”

we will affirm the judgment notwithstanding the potential for

a defect or imperfection in the process by which the judgment

was obtained. Code § 8.01-678.

The record shows that the circuit court was painstaking

in its efforts to instruct the jury both in how it was to

determine the liability, if any, of Centra Health and then,

based upon its determination, what quantum of damages could be

assessed depending on whether that liability was for the

wrongful death claim or for the survival claim. The law and

its application were clearly detailed in the instructions, the

court’s further explanations, and in the verdict form. Though

Centra Health might have requested a specific instruction

expressly cautioning the jury to disregard evidence that was

not relevant to the damages it might award, it did not do so,

and in any case such an instruction would have added little to

the court’s clear differentiation of the two causes of action

in the other instructions. A jury is presumed to follow the

court’s instructions, and an appellant who challenges a

verdict bears the burden of rebutting that presumption. Stump

33
v. Doe, 250 Va. 57, 62, 458 S.E.2d 279, 282 (1995). In this

case, there is no indication that the jury failed to follow

the court’s instructions and nothing express in the record to

rebut the presumption that the jury did not do so.

Similarly, we do not agree with Centra Health’s

contention that the amount of the verdict is excessive in

light of the nature of Mullins’ injuries. Centra Health’s

characterization of the injury as merely being the urinary

tract infection and its contention that the impact of that

injury was somehow minimized by Mullins’ diminished level of

consciousness is without merit. The record amply supports the

conclusion that as a result of the hospital staff’s

negligence, Mullins received substandard care that resulted

not merely in his developing the urinary tract infection, but

of all the consequential medical complications arising from

the infection including, but not limited to, developing ileus,

severe abdominal pain and distention, and delirium, as well as

the cost of the second hospitalization.

In light of this evidence, and in consideration of the

fact that the jury’s verdict reflects a clear understanding

that the administrators were entitled to recover only for the

survival claim if Centra Health was found to be negligent, but

not liable for Mullins’ death, we hold that the award is

adequately supported by the record. Accordingly, we further

34
hold that the circuit court did not err in refusing to set the

verdict aside.

CONCLUSION

For these reasons, we will affirm the judgment of the

circuit court confirming the jury’s verdict in favor of the

administrators awarding $325,000 in damages for the personal

injuries suffered by Mullins.

Affirmed.

35