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Must co-administrators join in suits for wrongful death?

AS AN EVER INCREASING NUMBER OF LAWSUITS ARE FOR WRONGFUL DEATH AND/OR FOR INJURIES TO A DECEDENT, DEFENSE COUNSEL ARE SEEKING ALL MEANS TO HAVE SUCH CASES DISMISSED. That was the situation in this Virginia case, in which attorneys for defendant physicians and others challenged the right of only one of two co-administrators to bring suit for wrongful death and/or medical malpractice. Consequently, a case, however meritorious it might be, brought against a physician or other health care provider,, however negligent or guilty of medical malpractice he or she might have been, can rise or fall on the question of whether (if there are co-administrators) must they both join in a suit for wrongful death and/or medical malpractice.

JOSEPH ADDISON DIED ON APRIL 3, 2004, AFTER HAVING BEEN TREATED AT CLINCH VALLEY MEDICALCENTER. His parents, Jerry and Shirley Addison, qualified as coadministrators of his estate. On March 21, 2006, Jerry, as administrator, filed a complaint pursuant to the Wrongful Death Act, alleging medical malpractice against Joseph's treating physicians, Drs. William Jurgelsky, Antonio Peralta, Thomas Cortellesi, Edna Griffenhagen and Galen-Med, Inc. Drs. Jurgelsky, Peralta Cortellesi and Galen-Med, Inc., filed motions to abate the suit due to the nonjoinder of Shirley Addison as co-administrator, asserting that "[a] single administrator of an estate that has two co-administrators has no right, standing, or authority to file an action at law without the other co-administrator joining in the case." The Circuit Court denied the motion to abate and granted Jerry leave to file an amended complaint joining Shirley as a plaintiff. Jerry filed an amended complaint including Shirley as a party plaintiff and naming only Drs. Jurgelsky, Peralla (Note: the court's opinion spells the last name of Dr. Antonio Peralta also as Peralla) and Cortellesi as defendants. The defendants filed pleas of the statute of limitations as a bar to the amended complaint, asserting, inter alia, that the two-year limitation period was not tolled prior to Shirley's joinder because an action by only one of two co-administrators was a nullity. Since the limitations period had expired, the court granted the defendants' motion to abate the suit and dismissed the amended complaint, with prejudice. The Supreme Court of Virginia granted the Addisons' petition for leave to appeal the entry of judgment dismissing their complaint with prejudice, which had the effect of denying them the right to file an amended complaint.

THE SUPREME COURT OF VIRGINIA REVERSED THE JUDGMENT ENTERED BY THE LOWER COURT AND REMANDED THE CASE BACK TO IT FOR TRIAL. The court noted that the case presented purely legal questions of statutory construction, which the court was required to review, de novo. The court observed that there were two assignments of error. One was the Addisons' contention that the lower court erred in ruling that Jerry lacked standing as a single co-administrator to maintain a wrongful death action. Alternatively, the Addisons contended that Shirley, as a necessary party, could be joined as a party plaintiff after expiration of the statute of limitations. The court determined that it had to first decide whether a single co-administrator may file an action under the Wrongful Death Act. The court held, inter alia, that all co-administrators must join as plaintiffs and that a single co-administrator can not maintain a wrongful death suit!

HAVING DECIDED THAT A SINGLE CO-ADMINISTRATOR MAY NOT MAINTAIN A WRONGFUL DEATH SUIT, THE COURT DECIDED THAT A CO-ADMINISTRATOR MAY BE JOINED AS A PARTY PLAINTIFF AFTER THE STATUTE OF LIMITATIONS HAS RUN. The court noted that as long as one of the co-administrators had filed suit within the time permitted by the statute of limitations, a co-administrator could be joined as a party plaintiff after the statutory period had run. Accordingly, the court determined that Shirley could be joined as a party-plaintiff at any time "as the ends of justice may require." Editor's Note: Your editor can envision various hypothetical situations in which one parent may wish to sue for wrongful death as well any other damages to which the decedent's estate might be entitled, while the other parent refuses to prolong the agony of the loss of a child by having to relive the entire nightmare during both the preparation for, and participation in, a trial that may be years down the road, where a verdict for or against either party might be reversed on appeal for any number of reasons. What of situations in which the parties are offered a settlement in an amount which is satisfactory to one co-administrator, but not to the other? It appeared that there was no conflict between each of the Addisons in this case. However, one can envision any number of hypothetical situations in which parents, as well as others, who are co-administrators can do nothing but agree to disagree. Addison v. Jurgelsky, 092361 (1/13/2011)-VA
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Publication:Medical Law's Regan Report
Date:Mar 1, 2011
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