Loss of consortium, a type of legal damage, refers to deprivation of the benefits of a relationship, usually between a husband and wife, including household duties, caregiving, companionship and sexual intimacy. Plaintiffs make loss of consortium claims when their spouse or family member is seriously injured or killed, forcing the plaintiff to live a different life than they would have without their loved one's injury or death.
What is Loss of Consortium?
Some legal scholars trace the concept of damages related to loss of consortium back to English common law, and others find its roots as far back as Roman law. In both cases, loss of consortium claims and reparations were aimed at compensating a husband for missing property (his wife) and the value it posed.
Though archaic in thinking, these early interpretations of loss of consortium sought to deliver justice to husbands deprived of their wives. If a court found a wrongdoer responsible for a woman's injury or death, the wrongdoer would need to provide her husband compensation equivalent to the economic value of her missing household contributions.
In contemporary times, loss of consortium addresses the value of familial relationships, encompassing injuries far more abstract than property damage or destruction. It now ascribes value to love, care and camaraderie in addition to domestic responsibilities like childcare and home maintenance.
Though sexual intimacy may be part of a loss of consortium claim involving a husband or wife, it is only one of many aspects considered when evaluating such a claim.
Who Can Claim Loss of Consortium?
In the distant past, only a husband could make a loss of consortium claim in response to serious or fatal injury to his wife. In the United States, that limitation was struck down by a D.C. Circuit Court just shy of 70 years ago. In their opinion, the judges made clear that "the husband and the wife have equal rights in the marriage relation which will receive equal protection of the law." The court affirmed the wife's right to claim loss of consortium in the event of injury to her marriage relationship and its associated benefits. Women now have the same rights to a loss of consortium claim as their husbands.
Parents, Children and Loss of Consortium
But what about a child who loses a parent? Love, care and support form part of a parent-child relationship just as they would a husband-wife relationship. On casual observation, the intent of loss of consortium claims seems to fit in the case of parental injury or loss. But law rarely conforms to simple interpretation or superficial consideration.
Loss of consortium laws vary state to state, but multiple courts have allowed children to claim damages related to the loss or injury of their parent or guardian, often referred to as parental consortium damages. One court ruled that an individual could bring a loss of consortium claim as long as they had a "significant enough relational bond" with the victim (injured or deceased parent). In general, the ability of a child to make such a claim depends entirely upon the relevant state law, or common law, and a court's interpretation of it.
Similarly, parents have largely been permitted to make loss of consortium claims in the event of serious or fatal injury to a child. This type of claim, a filial consortium claim, is subject to varying state laws and judicial precedents. Some cases have successfully recovered damages for grandparents and siblings related to a negligently injured child.
The best way to understand loss of consortium in the context of a parent-child relationship is by speaking to one of our experienced lawyers today.
Cohabiting Partners and Loss of Consortium
As of 2012, New Mexico was the only state to allow loss of consortium claims for unmarried partners. In the opinion of the New Mexico Supreme Court, a person makes such a claim "to recover for damage to a relational interest, not a legal interest," meaning the court should not use legal status (marriage) as a stand-in for significant relational interest.
In the aforementioned New Mexico case of Lozoya v. Sanchez, the court ruled that "a claim for loss of consortium is not limited to married partners," but most other courts have disagreed. According to one scholar, almost every court given the opportunity has denied the right of unmarried cohabitants to claim loss of consortium.
Loss of Consortium in Same Sex Marriage
A recent United States Supreme Court decision opened the door for same sex spouses to claim loss of consortium due to their married partner's injuries. In Obergefell v. Hodges, the U.S. Supreme Court affirmed the equality of the marriage relationship between same sex and opposite couples. They also insisted upon equal rights to all benefits associated with marriage, including loss of consortium.
In general, it seems the Supreme Court has determined that same sex married couples can claim loss of consortium damages.
Are Loss of Consortium Damages Limited?
Depending on the type of lawsuit, certain limits may apply to a loss of consortium claim. Since it falls under the category of compensatory damages, loss of consortium is limited by state compensatory caps. It may also be limited by certain insurance and/or liability limits. Our experienced personal injury lawyers can evaluate your specific case and advise you of any applicable limitations.
Loss of Consortium Examples
As with most legal concepts, loss of consortium is easiest to understand in the context of a real case. So we scoured the lawsuits covered on ConsumerSafety.org and compiled the best examples below.
Decker v. GE Healthcare - $500,000
After receiving a contrast agent for a magnetic resonance imaging procedure, Karen Decker's husband developed nephrogenic systemic fibrosis (NSF). Mr. and Mrs. Decker sued GE Healthcare for failing to warn them about this serious complication.
As a part of their lawsuit, they sought loss of consortium damages on behalf of Mrs. Decker for the injuries inflicted upon her marital relationship by Mr. Decker's NSF. The jury awarded Karen $500,000 based upon the loss of consortium claim in this gadolinium lawsuit.
Huskey v. Ethicon - $200,000
Jo Huskey's physician attempted to treat her stress urinary incontinence (SUI) with a type of transvaginal mesh manufactured by Ethicon. Within weeks of implantation, Jo's mesh device had eroded, causing pelvic pain. The malfunctioning implant required multiple surgical revisions, all of which were unable to remove certain pieces of the implant and associated scar tissue.
Mrs. Huskey sued Ethicon for design defects and failure to warn her of the side effects she experienced. As part of her transvaginal mesh lawsuit, Mr. Huskey also sought damages for loss of consortium, claiming Jo's pelvic pain had negatively impacted their relationship. The jury awarded him $200,000 for that claim.Did your transvaginal mesh implant malfunction? Speak with our lawyers now
Loss of Consortium Terminology
Money awarded to an individual as legal restitution for a loss of injury
Filial Loss of Consortium
Loss of consortium claimed by a parent as a result of serious or fatal injury to their child
Parental Loss of Consortium
Loss of consortium claimed by a child related to injuries sustained by their parent