Litigating Spinal Cord and Brain Injury pt. 5
LOSS OF CONSORTIUM
Loss of consortium is finally recognized in most jurisdictions. In lay terms, loss of consortium or “trauma to the marital relationship” recognizes the fact that due to injury, a spouse may not be capable of performing those tasks as pre-morbidly performed.
The claim of loss of consortium establishes the right of one spouse to state a cause of action for loss of companionship, emotional support, love, and sexual relations caused by a negligent or intentional injury to the other spouse by a third party. Disparagingly described as “sentimental” or “parasitic” damages, the mental and emotional anguish caused by seeing a health, loving, companionable mate turned into a shell of a person is real enough. To describe the loss as “indirect” is only to evade the issue. The loss of companionship, emotional support, love and sexual relations are real injuries. There may not be deterioration in the marital relationship, but it will certainly alter it in a tragic way. Even in the case of a husband, the “sentimental” images may dominate over the loss of support or material element. Thus, these damages are certainly not “parasitic” and to so describe them is inaccurate and cruel.
Historically, damages for loss of consortium were not viewed with favor. Today, virtually all jurisdictions universally recognize loss of consortium claims.
Counsel should always include such a claim, where appropriate.
VIII.
EXTENDED CLAIMANTS
As with claims for loss of consortium, counsel should carefully research applicable law to determine whether, for example, children may have a valid cause of action where a parent sustains a spinal cord injury, or conversely, whether the parent may maintain a cause of action where the child sustains the injury.
Bystander theories of negligent infliction of emotional distress should be pursued whenever the facts of a given case provides such a remedy. In the ongoing quest to limit the scope of who may recover, courts in some jurisdictions have imposed stringent guidelines as to who can recover for negligent infliction of emotional distress. For example, the Supreme Court of California has established a three-part test, which must be satisfied in order a plaintiff state a cause of action for “bystander” negligent infliction of emotional distress:
In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff:
1) is closely related to the injury victim;
2) is present at the scene of the injury – producing event at the time it occurs and is then aware that it is causing injury to the victim; and
3) As a result suffers emotional distress beyond that which would be anticipated in the disinterested witness.
[Thing v. La Chusa, (1989) 40 Cal.3d 644, 647,
257 Cal.Rptr. 865.]
Nonetheless, where a family member observed the injury-causing event (where required), an action for negligent infliction of emotional distress should be brought on behalf of the family member or bystander.
IX.
CONCLUSION
Since there is no magic, we must discuss money. Damages in a spinal cord injury case are significant, and are generally limited by shortened projections of life expectancy. This is especially so in the catastrophic case.
Proper presentation of a plaintiff’s damages requires a multi-disciplinary expert team, and common sense. Given the significant extent of damages in a spinal cord injury case, no lawyer should over reach. Remain conservative, within the boundaries of what is medically necessary in order the survivability of the plaintiff be assured.
