Dismissal of Wrongful Death Action Based Upon Seldom Utilized Doctrines of Election of Remedies and Judicial Estoppel

In a lawsuit brought by the wife of a deceased nursing home resident alleging that medical malpractice caused him to fall, suffer head injuries, and die, it was discovered that the decedent’ wife had filed a separate lawsuit against her husband’s life insurance provider alleging breach of contract for its failure to pay a death benefit. Upon further investigation, it was discovered that in that lawsuit, the decedent’s wife maintained that her husband’s fall was secondary to “an accident,” and that the decedent’s life insurance policy contained an exclusion for death secondary to medical malpractice. During the pendency of the medical malpractice lawsuit, the life insurance breach of contract suit was settled.

GS LLP moved to dismiss the medical malpractice and wrongful death lawsuit against its client, an internist at the nursing home, arguing that the doctrines of Election of Remedies and Judicial Estoppel precluded the decedent’s wife and estate from recovering for the decedent’s death under a medical malpractice theory since they had already recovered for it based upon an inconsistent theory. They argued that plaintiffs should not be entitled to two recoveries for the same death under different, inconsistent positions. The Court agreed, and all claims were dismissed.