What Is a Loss of Consortium Claim, Who Can File, and For How Much?

Loss of consortium isn’t just about marital relations. It’s also about compensable losses suffered by parents and children of accident victims.

Serious injuries caused by someone else’s negligence not only change the victim’s life, but also impact the lives of their family members.

In the event of serious injuries to a person, or a wrongful death case, spouses and other family members have the right to claim damages for loss of consortium.

Consortium is a legal term that describes the right of association and companionship between people, including their ability to provide love, care, support, and household services for their spouse, children, or parents.

Catastrophic injuries change many areas of a person’s life, sometimes permanently. Depending on the type and severity of a victim’s injury, they may not be able to have intimate relations with a spouse, provide care and companionship to a parent, or nurture and mentor their children.

Loss of consortium falls under the umbrella of pain and suffering in personal injury claims. The injury victim cannot claim loss of consortium. The claim is only available to their spouse or family members.

Most states require loss of consortium claims to be included within the victim’s personal injury case.

Spousal Claims for Loss of Consortium

Although frequently thought to be about sexual relations alone, loss of consortium includes compensation for all marital benefits impacted by the victim’s injuries or death. The claimant must show they had a valid marriage to the injured person.

Marital benefits typically include:

  • Love and companionship
  • Sexual relations
  • The ability to have a child
  • Financial support
  • Domestic services like cooking and cleaning

Money pays for things that make our lives easier, but it can’t replace the love and affection of an injured spouse. Even still, through a loss of consortium claim, civil courts make it possible to provide some financial compensation based on these intangible losses.

Case Example: Wife Awarded  $750,000 for Loss of Consortium

A teacher sustained a head injury when a student slammed a school door into the side of his head. Because the Board of Education hadn’t met the standards for inspection and maintenance of the door, they were held responsible for the injuries.

After nine surgeries and experiencing vision loss, the teacher was awarded $5 million for his pain and suffering. Additionally, his spouse obtained $750,000 for loss of consortium. After the incident, she had to take on the responsibility for household chores, taking care of their child, cooking, and helping her husband in his daily activities.

Child Claims for Loss of Parental Consortium

Loss of consortium claims are not limited to the injured person’s legal spouse. In some states, the injured person’s young children, through their attorney, can also file a loss of consortium claim.

A child’s losses when a parent is injured include:

  • Financial support
  • Care and nurturing
  • Guidance and mentoring
  • Emotional pain and suffering

The child’s attorney must prove that the parent’s injuries permanently changed their relationship.

Case Example: Daughter Awarded $405,000 After Dad’s Injury

During a fight in the parking lot of a Texas bar, David Reagan was hit on the head with a baseball bat by Vaughn, the manager of the bar. Reagan sustained a significant traumatic brain injury (TBI).

David and his minor daughter Julia sued Vaughn and the two owners of the bar. The bar owners and manager were found to be at fault for Reagan’s damages.

The jury awarded $2,432,000 to Reagan and $405,000 to his daughter Julia, of which $200,000 was for the loss of “parental care, nurture, and guidance,” $25,000 was for mental anguish in the past, and $180,000 for mental anguish in the future.

On appeal to the Texas Supreme Court, the court determined that Julia Reagan presented enough sound evidence to sustain her claim for loss of parental consortium. As such, her award did not change.

Parents’ Losses When a Child is Injured

Like a spouse, the parent can show that their injured child can no longer provide the same level of care, nurturing, and affection as they did in the past.

The parent must prove that their child’s severe physical injury created a long-term or permanent change to their relationship, resulting in the parent’s suffering and emotional distress.

If a surviving parent files a claim for the loss of their child’s society, affection, and companionship, it’s referred to as a loss of filial consortium.

Case Example: Mother Awarded $1 Million for Son’s Injuries

Luis John Cruz was a 15-year-old student attending Miramar High School in Broward County, Florida. His substantially premature birth resulted in a mental handicap. Although he was physically active and enjoyed sports and trips just like his peers, he had the mentality of approximately a second or third-grade child.

While at school, one day, an altercation arose between Cruz and another schoolmate that resulted in the schoolmate pushing Cruz. He landed on his head and incurred severe injuries.

His mother filed a claim against the school board for their negligence in providing adequate supervision to keep her son safe. Her son was awarded $2,697,725 for his injuries, and she was initially awarded $3,500,000 for loss of filial consortium.

The mother’s award was later reduced by the court to $1,000,000, ruling that the award should cover only the four years between the date of the injury and the date of trial.

Compensation Value of Consortium Claims

There are no laws or regulations that precisely determine the monetary value of a loss of companionship or consortium claim in any state. However, because loss of consortium damages include non-economic damages, they are subject to caps in some states.

Caps on Loss of Consortium Awards

Caps are limitations on the total damages an injured person may receive under state law.

For example, Wisconsin has loss of consortium caps of $350,000 for the death of an adult and $500,000 for the death of a minor.

The Wisconsin Loss of Consortium statute reads, in part:

“Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.”

Factors that increase a loss of consortium claim include:

  • A stable and loving relationship with the injury victim
  • Living under the same roof or regular contact with the victim
  • The victim gave a lot of care and companionship before their injury
  • Evidence of the shared activities before the victim’s injury
  • Evidence of household chores the victim took care of before their injury

Factors that decrease a loss of consortium claim include:

  • A history of domestic abuse
  • Lack of communication or time spent with the victim
  • Non-custodial parent/child relationship
  • Evidence of abandonment

An experienced personal injury attorney will also look at the amount of damages paid to claimants in similar cases within the same city and county as a guideline. If an existing case has facts very similar to a prior case, with a known damage award, the attorney will take that into consideration.

Loss of consortium claims can be challenging to prove and extremely personal. The at-fault party’s insurance company will fight your claim. You don’t have to struggle all alone. It costs nothing to find out what a personal injury lawyer can do for you and your family.

Proving a Loss of Consortium Claim

Like all other types of personal injury losses, loss of consortium requires proof. You will not be successful if you can’t prove you’re experiencing a significant loss because of your spouse’s or loved one’s injury.

Generally, the spouse or family member of the injured party needs to prove their relationship to the injured person. Proof of relationship can be a marriage certificate or birth certificate.

Evidence Proving Loss of Consortium

Your attorney will help you identify and collect the evidence you’ll need to support a loss of consortium claim.

A loss of consortium claim needs evidence that one or more of the following is true:

  • You lost the victim’s moral support, companionship, aid, and comfort due to their injuries
  • You lost the household services that the injured person performed before the injury
  • You incurred expenses, or will do so in the future, arising from the victim’s injuries

You’ll need to document the severity of your loved one’s injuries, starting with statements from medical specialists explaining the extent of the victim’s injuries and their prognosis for recovery.

Additionally, you should be prepared to provide:

  • An expert opinion on the estimated life expectancy for you and your loved one
  • Evidence of the household services the injured family member performed before the injury
  • Evidence of the various activities that you and your spouse/parent/child enjoyed together before the injury that are no longer possible

An injury journal can be compelling evidence in a loss of consortium claim. If you’re the injured party, it’s a good idea to keep a journal to document both the emotional impact of your injuries and the duties you’re not able to perform now that you’re injured. Your spouse can keep a journal as well. Children can journal about their injured parent’s absence from school functions or sports events.

If you need to pay for services that your family member can no longer perform, be sure to keep records of payments made for the replacement services. For instance, receipts or invoices for payments made for daycare, housekeeping, transportation, or tutoring for children should be kept in an injury claim file.

Expert Witnesses in Loss of Consortium Claims

Expert witnesses can prove invaluable information in loss of consortium claims. When you hire a personal injury attorney, they can hire these types of witnesses to provide testimony in your case.

Expert witnesses can include:

  • Economists and vocational experts
  • Healthcare providers
  • Accident reconstructionists

Expert testimony clarifies issues of fact that are beyond the range of experience or thought of a juror or claims adjuster.

Experts can provide their opinions on various facts in the case, such as how an accident occurred, how an accident caused specific injuries, and how injuries can impact the abilities and lifestyle of the injured party going forward.

Financial and vocational experts can testify as to the loss of future earning capacity, the future value of lost income, and much more.

Preparing for Personal Testimony

When making a claim for loss of consortium, the injured victim and the filing spouse or family member should mentally and emotionally prepare to reveal details of their relationship in front of many people.

During questioning, usually during a deposition, both the injured party and the loss of consortium claimant will face intense questions involving their personal lives.

The at-fault party’s attorney is entitled to ask the injured individual questions about almost any activity they claim has been impaired by their injuries, including sexual activity.

Similarly, this also applies to a spouse, children, or parents filing a loss of consortium claim. Attorneys and insurers have a right to ask questions about how their loved one’s injuries prevent them from enjoying the benefits of being married or receiving particular care and companionship.

Questions about loss of consortium claimed by a spouse might include:

  • The couple’s children, or plans to have children
  • The relationship, including questions about past and current intimacy and sexual contact
  • History of domestic violence
  • Separations, affairs, or other discord before the accident
  • Marital problems or times when the couple sought professional help for their marriage

Questions about loss of consortium due to a child losing a parent will focus on:

  • The care that the parent provided before their injury, and the care that is now possible post-injury
  • How the parent’s injuries have impacted the ability of the parent and child to develop or continue a healthy, loving, supportive relationship
  • The parent’s current ability to provide childcare and support, and to participate in household and family-related activities such as cooking, grocery shopping, and cleaning

Parents who make a filial consortium claim might be asked about:

  • Their relationship with the child’s other parent
  • Custody arrangements before and after the child’s injury
  • The amount and quality of time spent with the child prior to the child’s injury or death
  • Loss of services provided by an adult child to a dependant parent

Preparing for a Deposition

Although questions related to a loss of consortium case are quite personal and may feel humiliating, if you want to pursue this claim, you will need to answer them to the best of your ability. If you cannot remember a specific detail or do not want to speculate, you are allowed to say, “I don’t recall.”

Your attorney will prepare you before your deposition. They can explain what to expect and what types of questions you will need to answer.

Your attorney will be with you during questioning. If the lawyer for the other side asks questions that are not on topic or are off-limits, your attorney can object to you answering them.

Don’t hesitate to seek legal advice if you believe you have a cause of action for loss of consortium. Most injury attorneys offer a free consultation to injury victims and their families.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>