PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, Chafin, JJ., and Millette, S.J.

LEWIS DARNELL GREEN,
PERSONAL REPRESENTATIVE/EXECUTOR OF THE ESTATE
OF ONEIDA STILTNER GREEN, DECEASED
                                                                     OPINION BY
v. Record No. 190181                                        JUSTICE S. BERNARD GOODWYN
                                                                      June 4, 2020
DIAGNOSTIC IMAGING ASSOCIATES, P.C., ET AL.

                   FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                               Richard C. Patterson, Judge

       In this appeal, we consider whether the circuit court erred in dismissing a suit for

wrongful death against Virginia medical providers on the basis that the plaintiff had received a

personal injury settlement against Kentucky medical providers concerning the same injury.

                                          I. BACKGROUND

       Lewis Darnell Green (Green), the husband of Oneida Stiltner Green (the decedent), is the

personal representative and executor of the decedent’s estate. Green filed wrongful death and

personal injury actions in a Virginia circuit court and a Kentucky circuit court, alleging that the

decedent died as the result of medical professionals in both states failing to identify and treat the

decedent’s “mesenteric ischemia when her ischemic bowel was salvageable.”

                                 A. Medical Treatment in Virginia

       On May 24, 2013, the decedent was admitted to Clinch Valley Medical Center in

Virginia because she was experiencing nausea, vomiting, and abdominal pain. 1 Dr. Waheed

Bhatti (Dr. Bhatti), an agent or employee of Clinch Valley Medical Center, admitted the




       1
          Because courts take facts alleged in a complaint as true in ruling on a motion to dismiss,
the facts here are those alleged in the amended complaint. See Bragg v. Board of Supervisors,
295 Va. 416, 423 (2018).

                                                  1
decedent into the center, noting a history of stones in her pancreatic duct and chronic

pancreatitis.

        The decedent had an abdominal CT scan on May 26, 2013, to look “‘for necrotic

pancreas.’” Dr. Qasim Rao (Dr. Rao), an agent or employee of Diagnostic Imaging Associates,

P.C. (Diagnostic Imaging), read the CT scan results. Dr. Rao noted “pancreatic atrophy with

dilation of the main pancreatic duct, calcifications within the proximal duct, no inflammation to

suggest pancreatitis and no evidence of bowel obstruction.”

        That same day, Dr. Bhatti and Dr. Ariel Enrique Rodriguez Pimentel (Dr. Pimentel), an

agent or employee of Clinch Valley Advanced Laparoscopic Surgery (Clinch Valley Surgery),

examined the decedent and reviewed her CT scan results. The decedent was discharged from

Clinch Valley Medical Center on May 28, 2013.

                               B. Medical Treatment in Kentucky

        The decedent continued to experience nausea, vomiting, and abdominal pain, and on May

29, 2013, she was admitted to Pikeville Medical Center in Kentucky, but she was discharged the

next day.

        The decedent experienced severe abdominal pain and returned to Pikeville Medical

Center on June 4, 2013. That same day, she was transferred and admitted to the University of

Kentucky Medical Center. The decedent was “diagnosed with ischemic bowel due to the

occlusion of her” superior mesenteric artery. Surgeons at the University of Kentucky Medical

Center “remove[d] extensive amounts of [the decedent’s] bowel that had become necrotic. They

also performed a bypass of her [superior mesenteric artery] which successfully revascularized

her remaining bowel.”




                                                 2
       In the following two months, the decedent had “multiple other surgeries for her ischemic

bowel, leaking anastomosis, abdominal washouts and fistula formation” at the University of

Kentucky Medical Center. During this timeframe, the decedent also experienced “complications

with sepsis, pneumonia, and renal failure.” The decedent received a tracheotomy and a feeding

tube was put in place.

                                C. Additional Medical Treatment

       On August 8, 2013, the decedent was transferred to a nursing home, but on August 10,

she returned to the University of Kentucky Medical Center. She again was transferred to a

nursing home on August 14. On August 23, due to abdominal pain and vomiting, she was

admitted to Johnston Memorial Hospital in Virginia.

       The decedent was admitted to Johnson City Memorial Hospital in Tennessee on August

25. The decedent died on August 29 “as a result of complications directly related and

attributable to the extensive bowel resection she underwent on June 4, 2013.”

                            D. Procedural History in Kentucky Case

       On August 25, 2014, Green sued Pikeville Radiology, PLLC (Pikeville Radiology), a

doctor employed by Pikeville Radiology, and Pikeville Medical Center (collectively the

Kentucky Defendants) in a Kentucky circuit court. Green alleged claims for the decedent’s

personal injury and wrongful death, and sought damages for her pain and suffering, medical

expenses, loss of wages, and Green’s loss of consortium. The complaint, in part, alleged that the

Kentucky Defendants were negligent and “deviated from the appropriate standards of care,” and

that their failure to identify and treat the decedent’s mesenteric ischemia “when her ischemic

bowel was salvageable, was a proximate cause of her death.” The complaint alleged that

Pikeville Medical Center deviated from the appropriate standard of care as follows:



                                                3
           a. they failed to identify an occluded superior mesenteric artery and resulting
              bowel ischemia as a potential cause of Oneida Green’s symptoms;

           b. they failed to rule out an occluded superior mesenteric artery and resulting
              bowel ischemia as a cause of Oneida Green’s symptoms;

           c. they failed to treat Oneida Green for an occluded superior mesenteric
              artery and resulting bowel ischemia, and/or failed to have her transferred
              to another facility for treatment; they failed to conduct a proper
              differential diagnosis with regard to Oneida Green’s symptoms;

           d. they otherwise failed to comply with the applicable standards of care
              under the circumstances then and there existing.

       On February 28, 2017, the Kentucky circuit court entered an order granting Green’s

motion to dismiss the wrongful death and loss of consortium claims against the Kentucky

Defendants. On June 27, 2017, the circuit court entered an order reflecting Green’s agreement to

dismiss all claims against Pikeville Radiology and the doctor employed by Pikeville Radiology,

leaving Pikeville Medical Center as the sole defendant in Kentucky.

       Green settled with Pikeville Medical Center for an undisclosed amount and, on July 3,

2017, the Kentucky circuit court entered an order of dismissal that recognized the settlement and

dismissed all claims against Pikeville Medical Center with prejudice.

                             E. Procedural History in Virginia Case

       On August 24, 2015, Green sued Diagnostic Imaging, Dr. Rao, Dr. Bhatti, Clinch Valley

Medical Center, Dr. Pimentel, and Clinch Valley Surgery in the Circuit Court of Tazewell

County, alleging wrongful death under Code § 8.01-50 and a survival action for personal injury

under Code § 8.01-25.

       On August 11, 2016, Clinch Valley Medical Center filed a plea in bar, contending that

the survival action was barred by the statute of limitations. Clinch Valley Surgery and Dr.




                                                4
Pimentel filed a plea in bar on August 12, 2016, which incorporated by reference Clinch Valley

Medical Center’s plea in bar.

       On December 15, 2016, the circuit court granted Green’s motion to nonsuit the case,

without prejudice, regarding Clinch Valley Medical Center.

       On April 3, 2018, the circuit court granted Green’s request for leave to amend the

complaint, and Green filed an amended complaint on that same day. The amended complaint

does not include Clinch Valley Medical Center as a defendant or assert the survival action for

personal injury. The amended complaint solely asserts a wrongful death action under Code

§ 8.01-50, alleging that Dr. Bhatti, Clinch Valley Surgery, Dr. Pimentel, Diagnostic Imaging,

and Dr. Rao (collectively the Virginia Defendants) were negligent and that their “failure to

identify and treat [the decedent’s] mesenteric ischemia when her ischemic bowel was

salvageable was a proximate cause of her death.” The amended complaint, in part, alleges that

the Virginia Defendants diverged from the necessary standard of care as follows:

       a. they failed to identify ischemic bowel that was clearly present on the CT scan
          taken on May 26;

       b. they failed to identify a clearly occluded superior mesenteric artery present on
          the CT scan taken on May 26;

       c. they failed to identify an occluded superior mesenteric artery and resulting
          bowel ischemia as a potential cause of Mrs. Green’s symptoms;

       d. they failed to rule out an occluded superior mesenteric artery and resulting
          bowel ischemia as a cause of Mrs. Green’s symptoms;

       e. they failed to treat Mrs. Green for an occluded superior mesenteric artery and
          resulting bowel ischemia,

       f. they failed to have her transferred to another facility for treatment;

       g. they failed to conduct a proper differential diagnosis with regard to Mrs.
          Green’s symptoms; and/or


                                                 5
       h. they failed to comply with the applicable standards of care under the
          circumstances then and there existing.

       In late April 2018, the Virginia Defendants filed separate motions to dismiss. The

Virginia Defendants later filed a joint memorandum of law in support of their motions to

dismiss. They argued that Green’s lawsuits in Kentucky and Virginia asserted the same

injuries—“that the Virginia and Kentucky defendants failed to identify and treat the Decedent’s

mesenteric ischemia when her ischemic bowel was salvageable, which is alleged to be a

proximate cause of her death.” The Virginia Defendants contended that Code § 8.01-56 barred

Green’s wrongful death action in Virginia because Green had already elected his remedy when

he recovered for personal injury to the decedent in Kentucky. Additionally, the Virginia

Defendants argued that the prohibition against claim-splitting and double recovery barred Green

from “split[ting] his single cause of action into two separate claims and recover[ing] under both,”

and that the wrongful death action was also barred by judicial estoppel.

       Following a hearing, the circuit court granted the Virginia Defendants’ motions to

dismiss on November 15, 2018, and dismissed the amended complaint with prejudice. In its

letter opinion, dated September 20, 2018, the circuit court concluded that Code § 8.01-56 barred

Green’s wrongful death action in Virginia.

       The circuit court stated that Code § 8.01-56 requires plaintiffs in Virginia “to make an

election as to whether they want to recover for personal injury or wrongful death,” and that Code

§ 8.01-56 makes it clear that Virginia law only allows for “one recovery for the same injury.”

Noting that the law in Kentucky does not require a plaintiff to make such an election, the circuit

court opined that not requiring a plaintiff to make an election, as required by Code § 8.01-56,

would be seen as resulting in a “double recovery” or “case splitting” under Virginia law. It

concluded that Green’s “Kentucky settlement for personal injury equates to the election required


                                                 6
by” Code § 8.01-56. The circuit court stated that under a plain reading of Code § 8.01-56, “the

mere acceptance of the recovery in Kentucky for the same injury does foreclose any later

acceptance of a recovery in Virginia for the same injury.” Thus, Green could not pursue a

wrongful death action in Virginia for the same injury. Lastly, the circuit court also concluded

that judicial estoppel applied as a bar to Green’s wrongful death claim. Therefore, it granted the

Virginia Defendants’ motions to dismiss.

       Green appeals to this Court. We granted four assignments of error:

   1. The circuit court erred in granting the Defendants’ [m]otion to [d]ismiss.

   2. The circuit court erred in finding that Plaintiff’s claim was barred by Virginia Code
      § 8.01-56.

   3. The circuit court erred in finding that the Plaintiff’s settlement of the Kentucky case
      equated to an election of remedy under Virginia law.

   4. The circuit court erred in finding that Plaintiff’s claim was barred by judicial estoppel.

                                           II. ANALYSIS

       In reviewing a circuit court’s decision to grant a motion to dismiss, if no evidence has

been taken, “we treat the factual allegations in the [complaint] as we do on review of a

demurrer.” Bragg v. Board of Supervisors, 295 Va. 416, 423 (2018) (citation and internal

quotation marks omitted). Accordingly, “[w]e accept the truth of all material facts that are . . .

expressly alleged, impliedly alleged, and those that may be fairly and justly inferred from the

facts alleged.” Id. (citation and internal quotation marks omitted). We “review the circuit

court’s decision to dismiss the [complaint]” as well as any “issues of statutory interpretation, de

novo.” Id.

       On appeal, Green argues that the circuit court erred in granting the Virginia Defendants’

motions to dismiss, in part, because it incorrectly interpreted and applied Code § 8.01-56. Green



                                                 7
argues that his settlement for personal injury and abandonment of the wrongful death claim in

Kentucky did not elect Green’s remedy and bar him from pursuing a wrongful death claim in

Virginia.

       In interpreting a statute, we seek “to effectuate the intent of the legislature as expressed

by the plain meaning of the words used in the statute.” Llewellyn v. White, 297 Va. 588, 595

(2019). Accordingly, we “appl[y] the plain language unless the words are ambiguous or such

application would render the law internally inconsistent or incapable of operation.” Id.

       Code § 8.01-56 provides as follows:

       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. 2

       In the instant case, the circuit court characterized Code § 8.01-56 as an election of

remedy statute and reasoned that the settlement, in Kentucky, of the decedent’s personal injury

claim, equated to an election of remedy pursuant to Code § 8.01-56. We disagree.

        Code § 8.01-56 plainly states that if the injured individual’s death resulted from the

injury, the action for that injury must be pursued in a wrongful death suit under Code § 8.01-50.

In Virginia, a personal representative does not have the option of maintaining a personal injury




       2
         Code § 8.01-50 governs how and when to bring a wrongful death action:
       A. Whenever the death of a person shall be caused by the wrongful act, neglect, or
       default of any person . . . and the act, neglect, or default is such as would, if death
       had not ensued, have entitled the party injured to maintain an action . . . to recover
       damages . . . then, and in every such case, the person who . . . would have been
       liable, if death had not ensued, shall be liable to an action for damages
       . . . notwithstanding the death of the person injured . . . .

                                                 8
action for a decedent’s injury if that injury resulted in the decedent’s death. See Code §§ 8.01-25

and -56. 3

        Pursuant to Code § 8.01-25, although a cause of action survives

        the death of the person in whose favor the cause of action existed . . . 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 . . . the action shall be
        amended in accordance with the provisions of § 8.01-56.

Thus, if the injury complained of caused the death, “the pleadings are required to be amended,

and the case proceeded with as if brought under the death by wrongful act statutes.” Seymour v.

Richardson, 194 Va. 709, 712 (1953) (interpreting a predecessor statute to Code § 8.01-56).

        Code § 8.01-56 is not an election of remedy statute. Under the plain language of Code

§§ 8.01-25 and -56, determining which action to bring is not a matter of choice, but rather it is

dictated by the facts regarding causation of an injured person’s death.

        A plaintiff does not necessarily have to decide before trial whether the facts support a

personal injury action or a wrongful death action. Centra Health, Inc. v. Mullins, 277 Va. 59,

78-79 (2009). A plaintiff may bring a personal injury action and assert a wrongful death action

in the alternative, if the plaintiff is unsure of his ability to prove that the decedent’s death

resulted from the decedent’s injury. See Antisdel v. Ashby, 279 Va. 42, 49 (2010). However,

once the facts adduced at trial sufficiently establish whether “the personal injuries and the death

arose from the same cause,” a plaintiff, in Virginia, can only recover on the claim that is

supported by the record. Centra Health, Inc., 277 Va. at 79. The facts dictate whether a plaintiff




        3
         In Kentucky, however, a person may “recover in the same action for both the wrongful
death of the decedent and for the personal injuries from which the decedent suffered prior to
death,” even when such injuries contributed to the death. Ky. Rev. Stat. Ann. § 411.133.

                                                   9
can recover under the wrongful death statute, Code § 8.01-50, or whether the plaintiff can

recover for the decedent’s personal injury under Code § 8.01-25.

       Accordingly, in the instant case, Green’s ability to recover in Virginia for the personal

injury or wrongful death of the decedent was not an “election” Green was required to make

under Code § 8.01-56. Because Green alleged in the amended complaint that the decedent died

as a result of the injury she suffered at the hands of negligent defendants, in Virginia, his claim

could only proceed as a wrongful death action pursuant to Code § 8.01-50. There is no language

in Code § 8.01-56 that would prohibit the filing of a wrongful death action in Virginia because of

the settlement of a personal injury claim in another state. Further, Kentucky law allows the filing

of a personal injury claim in addition to a wrongful death claim for the same injury. See Ky.

Rev. Stat. Ann. § 411.133. Thus, as a matter of law the settlement of the Kentucky personal

injury claim did not operate as an election of remedies by Green in the Kentucky case. For these

reasons, we conclude that the circuit court erred in granting the motions to dismiss on the

grounds that Green elected a remedy when he settled the Kentucky personal injury action, and

that Green’s wrongful death action is barred by Code § 8.01-56.

       The circuit court also mentioned claim-splitting, double recovery, and judicial estoppel as

possible bases for its ruling on the motions to dismiss. We conclude that none of those doctrines

supports the circuit court’s granting of the motions to dismiss.

       Green argues that the circuit court erred in concluding that allowing Green’s wrongful

death action in Virginia would amount to claim-splitting. Green contends that the claim-splitting

rule does not apply here because the claims brought in Kentucky and Virginia are against

different defendants. We agree.




                                                 10
       “‘Claim-splitting’ is bringing successive suits on the same cause of action where each

suit addresses only a part of the claim.” Bill Greever Corp. v. Tazewell Nat’l Bank, 256 Va. 250,

254 (1998). Claim-splitting is prohibited “based on public policy considerations similar to those

underlying the doctrine of res judicata: avoiding a multiplicity of suits, protecting against

vexatious litigation, and avoiding the costs and expenses associated with numerous suits on the

same cause of action.” Id. “The rule against claim-splitting exists to protect a defendant from

vexatious and costly litigation resulting from a multiplicity of suits on the same cause of action.”

Flora, Flora & Montague, Inc. v. Saunders, 235 Va. 306, 311 (1988) (emphasis added). As we

have recognized, “[n]o one ought to be twice vexed for one and the same cause.” Id. (citation

and internal quotation marks omitted).

       In the instant case, the rule against claim-splitting does not apply because Green is not

bringing successive suits against the same defendants. Rather, Green filed separate suits against

the Kentucky Defendants and the Virginia Defendants.

       Additionally, the parties do not dispute that the Kentucky Defendants and the Virginia

Defendants are joint tortfeasors, and under Virginia law, “[a] judgment against one of several

joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the

injured party may bring separate actions against the wrongdoers and proceed to judgment in

each . . . .” Code § 8.01-443.

       Thus, because Green has not brought multiple suits on the same cause of action against

the same defendants, Green’s amended complaint did not amount to claim-splitting and the

circuit court erred in dismissing Green’s action on this ground.




                                                 11
       The Virginia Defendants argue that allowing Green to receive a second recovery in

Virginia for the same injury involved in the Kentucky settlement constitutes an impermissible

double recovery.

       “A fundamental principle of damages is that a plaintiff may not receive double recovery

for a single injury.” Dominion Res., Inc. v. Alstom Power, Inc., 297 Va. 262, 270 (2019). This

principle is echoed by the language in Code § 8.01-56, which states that “there shall be but one

recovery for the same injury.”

       Here, the circuit court dismissed Green’s amended complaint on the grounds that

allowing his wrongful death claim to proceed to trial could result in double recovery. Although

we recognize that Green admittedly seeks recovery in Virginia for the “same injury” involved in

his Kentucky settlement, Code § 8.01-56 and other statutory and common law principles

prohibiting double recovery do not bar Green’s Virginia action from moving forward.

       Under the common law principle against double recovery, a party may seek

compensation in two valid causes of action, but he is “estopped from collecting the full amount

[of damages] in the second action if they were partially paid therefor in the first.” Nizan v. Wells

Fargo Bank Minn. Nat’l Ass’n, 274 Va. 481, 491 (2007) (citation and internal quotation marks

omitted); see also Dominion Res., Inc., 297 Va. at 269 (noting that “the settlement amount is

deducted from the amount the remaining tortfeasors owe”). Likewise, Code § 8.01-35.1(A)(1)

may be asserted to prevent a double recovery in certain circumstances. 4 The preclusion upon




       4
         Code § 8.01-35.1(A)(1) entitles a defendant “to a reduction of the judgment entered
against him by the amount the plaintiff receives in settlement from another who is also
responsible for the identical wrong, harm, or damage as the defendant.” Llewellyn, 297 Va. at
596; see Code § 8.01-35.1(A)(1).


                                                 12
collection of the full amount of damages twice is rooted in “basic principles of fairness and

justice.” Nizan, 274 Va. at 491 (citation and internal quotation marks omitted).

        Green contends that he would not receive a double recovery because the circuit court

could reduce any judgment he receives in Virginia by amounts already compensated in the

Kentucky settlement, to the extent any part of that settlement may be found to constitute a double

recovery. We agree. An allegation of a potential double recovery was not a sufficient basis for

dismissing Green’s action; any alleged double recovery can be addressed by the circuit court.

Therefore, the circuit court erred when it dismissed the amended complaint on the grounds that

allowing Green’s wrongful death action in Virginia to proceed would allow a double recovery.

        Green argues that judicial estoppel does not apply because the parties in Kentucky and

Virginia are different, and there is “nothing inconsistent about the manner in which the Kentucky

case was resolved and the pursuit of a wrongful death claim here.” Clinch Valley Surgery

concedes that judicial estoppel does not apply. 5 We agree.

        “[J]udicial estoppel forbids parties from assuming successive positions in the course of a

suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with

each other, or mutually contradictory.” Bentley Funding Grp., L.L.C. v. SK & R Grp., L.L.C.,

269 Va. 315, 325 (2005) (citation and internal quotation marks omitted). In Virginia, the

doctrine of judicial estoppel only applies “when the parties to the disparate proceedings are the

same.” Id. at 326.

        Here, it is clear that the parties in Kentucky and Virginia are different, and there is

nothing inconsistent concerning how the Kentucky case was resolved and Green’s pursuit of the



        5
            Diagnostic Imaging did not address judicial estoppel in its brief.



                                                   13
wrongful death action against different defendants here in Virginia. Therefore, the circuit court

erred in dismissing the amended complaint based upon judicial estoppel.

                                         III. CONCLUSION

       For the reasons stated, we hold that the circuit court erred in granting the motions to

dismiss. The judgment of the circuit court will be reversed and this action remanded to the

circuit court for further proceedings.

                                                                          Reversed and remanded.




                                                14
