Statute of Limitations: A Moving Target?

Published on: 12/07/2004

December 7, 2004

Think the statute of limitations for cases arising out of medical malpractice is two years in Virginia ? Not necessarily, according to a recent opinion issued by Judge Mark Davis in the Circuit Court for the City of Portsmouth .


In Wright v. Eli Lilly and Company, et al , the plaintiff sued two pharmaceutical manufacturers and five health care providers, alleging that the negligence of the defendants in manufacturing, prescribing, and monitoring the use of the psychotropic drug Zyprexa caused the death of Latonya Wright. Ms. Wright died on November 23, 2001. The Motion for Judgment was filed on November 7, 2003. Two of the health care providers, who treated Ms. Wright from August 31 to September 2, 2001, filed a Special Plea of the statute of limitations, asserting that the two-year limitations period applicable to medical malpractice actions was controlling, and began running on the last day the defendants treated Ms. Wright. The plaintiff responded by arguing that the two-year limitations period applicable to wrongful death actions controlled and did not begin to run until the date of her death.


Judge Davis denied the defendants' statute of limitations plea, opting to apply the wrongful death limitations period and holding that the action was timely because it was filed within two years of Ms. Wright's death. Acknowledging that if Ms. Wright had survived, she would have had to file any claim for medical malpractice within two years from the accrual of the cause of action, the Court cited the nature of wrongful death actions and the plain language of the statute that governs the applicable limitations period as factors that distinguish wrongful death actions from "pure" medical malpractice actions.


At common law, claims for personal injury, including medical malpractice, that arose during an individual's lifetime were extinguished by the death of that individual. A statutory right of action for wrongful death was created in Virginia that enables the representative of the estate of an individual whose death was allegedly caused by the negligence of another to pursue a wrongful death action on behalf of the estate. A wrongful death action may be initiated as a personal injury action by the injured party and later converted to a wrongful death action upon the death of the party or, as in the Wright case, be filed for the first time as a wrongful death action following the death.


In addition to creating a right of action, Virginia's wrongful death act also establishes the limitations period applicable to such actions, providing that when a personal injury action is not already pending at the time of death, the representative of the estate of the individual has two years from the date of death to file a wrongful death action, rather than the original two-year limitations period that would have applied to the personal injury action. Judge Davis relied heavily on this distinction between the limitations period, noting "[i]t is illogical to suggest that the General Assembly would have assumed the limitation period applicable to the underlying cause of action would control where it was specifically adopting a limitation period for the statutorily-created wrongful death right of action."


While Judge Davis may consider any other conclusion illogical, he acknowledged that there is a split among the Circuit Courts on this issue. In Merritt v. Clark , 40 Va. Cir. 13, Judge Lee from the Circuit Court for Fairfax County, presented with a similar fact pattern, held that the limitations period applicable to medical malpractice actions was controlling and dismissed the plaintiff's case, filed two days after that limitations period expired but within two years of the death, as untimely.


The Virginia Supreme Court has yet to address this issue. Until it does, whether a wrongful death action is deemed to be timely filed may well depend upon its venue.

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