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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-
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administrators of Mullins’ estate.    On December  1,  2005, the
administrators filed a motion for judgment1  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).
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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
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[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).
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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.”
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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.
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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.
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“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
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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
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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.
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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.
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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:
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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
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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
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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-
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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
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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

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