Loss of consortium is a personal injury claim that can lead to damages for loss of affection and normal marital relations. In some cases, loss of consortium can also apply to a relationship between parents and children.
So when can a loss of consortium claim be made, and what will you have to prove in order to prevail in court?
Here are some general guidelines:
Who Can Sue?
Loss of consortium is usually limited to the loss of love, sexual relations, and services of a spouse. The loss of these services can result from another person's negligence, medical malpractice, assault, battery, wrongful death, or other forms of actionable personal injury claims. Loss of consortium claims are usually initiated by the uninjured spouse, who may be able to join the injured spouse's lawsuit. However, the injured spouse may also be able to sue for loss of consortium.
For example, a man whose genitals were burned while using a urinal at a fast-food restaurant sued the chain for failing to make sure the premises were safe. His wife joined the lawsuit claiming loss of consortium because her husband's burned genitals prevented them from having sex.
In some cases, parents can sue for loss of consortium with their child. This damage is usually limited to circumstances in which minor children are severely injured. Generally speaking, the injuries must be serious enough to interfere with the normal relationship between parents and their kids.
Proving Loss of Consortium
To prove loss of consortium for married couples, the court will consider the "value" of the loss by considering several factors including:
- How stable the marriage is,
- The couple's individual life expectancy, and
- The extent to which the benefits of married life were actually lost. For example, a spouse who's in a coma after an accident will likely be seen as losing a greater amount of marital benefits than a spouse who suffered a broken leg.
Depending on the type personal injury case, the damages awarded for loss of consortium may differ. Loss of consortium is a form of non-economic damage. Unlike calculable costs like hospital bills, non-economic damages are more abstract and usually account for one's pain and suffering.
Although it depends on your state's laws, there may be a cap on personal injury actions for non-economic damages in certain types of cases. But these laws can potentially be challenged. In Florida, for example, a $1 million cap on non-economic damages for medical malpractice wrongful-death claims was recently struck down by the state's Supreme Court.
As the amount of damages awarded for loss of consortium is determined on a case-by-case basis, an experienced personal injury attorney can give you a better idea of what to expect in your case.
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