Like every profession, law has its jargon, and because our legal system is descended from the ancient Romans, who brought it to Great Britain, many legal terms are in Latin. Even the words plaintiff (the person who sues in a civil case) and defendant (both the person sued in a civil case and the person accused of a crime in a criminal case) are Latin based—plaintiff originating from plangere, “to lament,” and defendant from defendere.
Today, I want to confine myself to a discussion of loss of consortium, meaning “partnership,” “association,” or “society,” within the general context of damages recoverable in a civil tort case (from the Latin word tortum, “wrong” or “injustice”).
When a married person is injured by a tort, whether it be a car accident, slip and fall, medical malpractice, or some other wrongful conduct, his or her spouse is entitled to claim damages for loss of consortium. Although many assume this suggests a loss or diminishment of the ability to have a sexual relationship, actually, it is the entirety of the value of the relationship, from doing dishes and mowing the lawn to providing comfort and support.
For example, in one of my cases the husband required nursing home care after a misdiagnosis of his hip fracture, and one of his wife’s greatest losses was not having her husband’s support and comfort at home when she herself was diagnosed with breast cancer.
While in many cases the loss is minimal and temporary, and therefore not valued highly by juries and insurance companies, in other cases it can be substantial. Brann v. Exeter Clinic was a medical malpractice case involving a failure to promptly diagnose and treat the husband’s cancer. During the 20 months before his death, his wife cared for him and provided physical and emotional support. After finding the defendants at fault, a jury awarded her $300,000 for her loss of consortium.
The verdict (another Latin word, meaning “to say the truth”) was appealed to the New Hampshire Supreme Court. The defendants argued that the amount was excessive. After reviewing the evidence of what Mrs. Brann endured during her husband’s illness, the Court disagreed. “The testimony was sufficient for the jury to find that the marital relations of Marsha and Robert Brann were severely affected and limited by his illness,” and because this loss is subjective and cannot be measured “with mathematical certainty,” the Court will not substitute its opinion for the jury’s decision.
There are several aspects to a claim for loss of consortium which can, however, seem unfair. For one, it applies only to legally married couples. It generally does not apply to “common law” couples living together, no matter how long or how close their relationship.
It also does not apply to wrongful death claims, that is, claims based solely on a person’s death (in the Brann case the jury would have been instructed that they could only award damages for the period before Mr. Brann died).
Fortunately, in many instances state legislatures in the United States have stepped in to remedy this injustice and allowed claims for the loss of consortium of a spouse, parent, or child after a wrongful death. These laws often include caps, however, and in New Hampshire the current cap for a spouse’s loss of consortium claim is $150,000, and for a parent’s loss of a child, $50,000. There is a proposal before the Legislature now that would increase those—the amount is being debated. If, after reading this, you think it should pass, please contact your legislators, state senator, and ask them to vote in favor of SB 462.
