Most people have heard of the claim “loss of consortium.” It comes from the root word consort meaning to associate, to spend time, to hang out with. The definition of the legal claim goes like this: loss of consortium is a claim for (money) damages by the spouse or close family member of a person who has been injured or killed as a result of the negligence or wrongful act of another person. It is a derivative claim, which means it derives or flows from the primary injury to the spouse or family member. Essentially, it creates a separate plaintiff (usually a spouse) and “piggybacks” off the injury to the injured person. A loss of consortium claim cannot exist without the recognized injury to the spouse or family member.
The Lost Sex Claim
People sometimes think of loss of consortium as the “loss of sex” claim. And in fact, one important injury under loss of consortium is that the primary injury prevented a loving married couple from enjoying intimacy and sexual intercourse in the same manner they enjoyed before the accident. Let’s face it, when intimacy is lost or diminished based on the negligence of others, people should be compensated. It’s one big reason we have the derivative claim.
But loss of consortium extends beyond married sexual relations. Suppose a married couple were passionate about sailing and took sailing trips most weekends, but the failure of an artificial hip placed a married woman in a wheelchair and made it impossible for her to climb onto the sailboat. In most states a loss of consortium claim could be made that the loss of this treasured activity deeply damaged the quality of life of the husband. Similar claims can be made for couples who actively garden together, play tennis, travel, or even cook.
Loss of consortium claims can also extend to family members, particularly parents and children. A son could potentially bring the same “sailing” claim as did the husband in the example above. It is important to note, however, that the more remote the family relationship, the less likely any significant recovery will result. Spousal relationships remain the primary relationships for pursuing, and winning, loss of consortium claims. Also, if a couple goes sailing once a year, the claim becomes weaker and more remote.
A Little History
The loss of consortium claim has uncomfortable origins. It began as a claim solely for husbands, whose wives were considered their property (“chattel” they call it in the dusty law books). In the eyes of the law, say, two hundred years ago, having a wife was much like owning a cow (the word chattel derives from cattle). It went something like this: say a drunk doctor botched a surgery and a man’s wife died. The husband was a farmer and had five young children at home. He expected that woman to feed the family, take care of the house, and maybe even have sex with him on occasion. The husband would bring a claim for loss of consortium in much the same way as he would bring an action against another man who negligently shot one of the man’s cows. (I’m merely reporting this primitive historical mindset.)
Today, loss consortium extends well beyond the exclusive rights of 18th century men. Women (and mothers, and children) can bring claims for loss of consortium when a close family member has been injured and the person can demonstrate actual damage caused by the loved one’s injury.
Loss of Consortium in Mesh and Hip Cases
It is not difficult to see how failed medical devices can give rise to significant loss of consortium claims. One of the key injuries in a transvaginal mesh case is dyspareunia, which is pain during sex. Many women have complained that their transvaginal mesh implants have caused serious pain during intercourse. If a woman is in pain, she should not have sex (or at least she likely wouldn’t welcome such an activity). If a failed medical device like transvaginal mesh causes pain during sex, and she can no longer have marital relations, the husband is clearly one of the victims. In those cases, the husband should absolutely bring a loss of consortium claim.
The same holds for artificial hip cases. I mentioned the example above about the couple who could no longer sail their boat together. But the fact patterns where valid loss of consortium claims can arise are nearly endless. One couple I knew could no longer tend their one acre garden, which they had worked on together for more than fifteen years (giving much of the produce to soup kitchens and food banks). This lost shared activity could support a loss of consortium claim. Failed IVC filters, which I have written about here, can also potentially create a loss of consortium claim.
Many failed medical devices can cause serious injuries to a person, which then impacts the life of the spouse or a close relative. Your attorney should always check to make sure a loss of consortium claim is valid in your narrative of injury.
The Value of Loss of Consortium Claims
Despite the fact that loss of consortium in some cases can be a devastating loss for the loved one of the injured person, companies often fight against paying reasonable amounts of money for these derivative claims. To be fully compensated for a loss of consortium claims, the injured person and his or her spouse often must try their case and ask the jury to give careful thought to the loss of consortium claim.
And juries can be generous. In a recent transvaginal mesh case in Philadelphia, a jury awarded the husband $250,000.00 for his loss of consortium claim. In a 2014 transvaginal mesh case in Dallas, a jury awarded the husband $1,515,000.00 for loss of consortium and for loss of “household services.”
By contrast, in the recent Depuy ASR artificial hip settlements, the amount of money offered for loss of consortium was not substantial, but to participate in the settlement the spouse or family member had to sign on (and sign away their loss of consortium claim). Depending on the facts of each case, it can be a tough decision.
Typically, the lion’s share of the total damages in an injury case derives directly from the injured person’s suffering. Let’s face it, pain during sex—and all the other suffering flowing from failed transvaginal mesh—is more devastating to the injured woman than it is to the husband. Still, loss of consortium is a vital claim in any injury case, and your attorney should prepare a documented narrative around the injury suffered by the spouse or other family member.