Survival Action Filed More Than 2 Years After Alleged Malpractice Is Within Limitations Period When Wrongful Death Claim Nonsuited Within 6 Months

A man received medical care from the defendants, and then sued the defendants for malpractice. During the litigation the man died and his widow, as administrator of the decedent's estate, moved to be substituted as plaintiff and for leave to file an amended complaint, converting the pending personal injury action to an action for wrongful death. The trial court granted both motions. The widow filed a nonsuit of her wrongful death action and filed an action for personal injuries suffered by the decedent arising out of the same alleged negligence, as a survival action. The plaintiff's survival action was filed more than two years after the defendant's alleged negligence occurred, but less than six months after the plaintiff's nonsuit of her action for wrongful death. The defendant argued that the widow’s claim should be dismissed because she filed it beyond the two-year statute of limitations applicable to actions for personal injury. The trial court dismissed the widow’s claim.


The Supreme Court of Virginia reversed and remanded the lower court’s decision. At common law personal actions died with the plaintiff. Virginia statutory law allows personal actions to continue after the death of either party. Where a plaintiff dies from the harm underlying his or her personal action, the action must be converted to a wrongful death claim. Where a plaintiff dies from something unrelated to the decedent’s personal action, the claim survives as is and may be pursued by the decedent’s personal representative, except for punitive damages.


Virginia law states that, “if a plaintiff suffers a voluntary nonsuit . . , the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer.” The court reasoned that, if the plaintiff's survival action arose out of the same cause of action as her nonsuited wrongful death action, it would be entitled to the benefit of the statutory tolling provision and is timely because it was filed within six months after the nonsuit. However, if the plaintiff’s survival action arose out of a different cause of action, it would be barred by the two-year statute of limitations for personal injury claims.


A "cause of action" is the set of operative facts which, under the substantive law, gives rise to a "right of action." A "right of action" cannot arise until a cause of action exists because a right of action is a remedial right to presently enforce an existing cause of action.


Here, the cause of action was the defendant's alleged medical malpractice resulting in injury to the decedent. This cause of action gave rise to two rights of action. First, the decedent had a right to bring an action for personal injury during his lifetime, which, according to Virginia statutory law, survived to be carried on by his personal representative after his death. Second, the personal representative had a right to bring an action for wrongful death. As the plaintiff filed her survival action within six months after the order granting nonsuit, it was saved by the statutory tolling provision.


See: McKinney v. Virginia Surgical Associates, P.C., 2012 WL 4039819 (Va., September 14, 2012) (not designated for publication).