The Mystery of Loss of Consortium Damages

The majority of cases that are seen by attorneys representing plaintiffs involve injuries to a single party, usually, as a result of a motor vehicle accident, slip and fall, or medical neglect at the hands of a health care provider.  Without doubt, should the injured party prove their claim for injuries under those circumstances, they will be entitled to recover both economic and non-economic damages.  The question arises as to whether the spouse of the injured party has a claim for damages.

Generally, the claim for loss of consortium damages is derivative, meaning that the spouse of the injured party has a claim for damages which derive from the injuries and damages of the injured spouse.  Assuming the injured spouse has proved his or her case, the non-injured spouse is entitled to non-economic damages for the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support and loss of enjoyment of sexual relations.  These are not economic damages, as they do not include loss of income of the non-injured spouse, nor do they include the costs of obtaining household services to replace those services that would have been performed by the injured spouse.

In many instances (typically in a motor vehicle accident), the insurance company’s policy has a single and aggregate limit, such as the minimum limits of in the state of California of $15,000 per person and $30,000 per event.  Under those circumstances, there is $15,000 available to the injured spouse, and due to the derivative nature of the loss of consortium cause of action, unfortunately the loss of consortium damages are contained within the initial insurance policy limits. Loss of consortium does not open the aggregate amount of the insurance policy for damages to the injured spouse.

There is an exception to the spouse’s limit of recovery, and that occurs in medical negligence cases.  In medical negligence cases, there is a maximum award of non-economic damages of $250,000 to the injured party.  The exception is that each spouse is entitled to separate $250,000 non-economic damage limitation (a spouse’s claim for loss of consortium), in that in medical negligence cases, the recovery is for the discreet injury to each spouse, because damages flow from the injury, not from the negligent act.  Essentially, loss of consortium is a separate and independent claim for the non-injured spouse’s claim for personal injury, when it applies in a medical negligence situation.

If you are looking for legal advice as to a claim for injury, as well as a claim for damages by a non-injured spouse, the attorneys at Heiting & Irwin are available for free consultations on all claims of injury, including claims for loss of consortium damages.  Please contact our office at your convenience for an initial consultation.

Published by Dennis Stout

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