What is “Loss of Consortium” in an Injury Case?

When someone in Florida is injured in a car accident or due to a medical mistake or some other situation caused by another person’s negligence, then a personal injury lawyer can help the injured person receive compensation for the harmful effects. The compensation is generally referred to as “damages.”

A skilled injury attorney will seek damages for a wide array of different effects. In many cases, one effect is “loss of consortium.” This is not a term anyone uses in casual conversation. In fact, it’s really not used anywhere except in the law. But it is important to understand this term if you or a loved one are dealing with actionable injuries. Damages for this effect can add up to considerable amounts-even millions of dollars in some extreme cases.

Injuries Have a Wide Impact

When the law allows recovery for loss of consortium, it recognizes that a personal injury affects more than just the injured individual. It affects all close family members and friends. However, the burden usually falls hardest on the spouse.

Loss of consortium compensates both the spouse and the victim, and for that reason, it is extremely valuable from both an emotional and a financial perspective. Recovering compensation for loss of consortium can help the victim and spouse feel they have achieved some justice. This allows them to put the matter behind them and start to move forward.

The Legal Definition of Loss of Consortium

Loss of consortium is an ancient common-law concept, meaning law that developed through court rulings rather than statutes. The Florida Supreme Court has defined loss of consortium as “the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation.” Many people simplify the definition to think that loss of consortium means loss of the ability to have sex. But in the case Gates v. Foley, (247 So.2d 40 (Fla. 1971)) the Florida Supreme Court explained that it refers to much more than sexual relations. It includes:

• Affection
• Solace
• Comfort
• Companionship
• Conjugal life
• Fellowship
• Society
• Assistance

These factors are viewed as “necessary to a successful marriage,” and therefore something so valuable that someone who has been wrongfully deprived of these factors should be able to receive compensation for them.

Who Can Recover Damages for Loss of Consortium?

Under traditional common law, the husband was eligible to file a claim seeking damages for loss of consortium. Starting in about 1950, courts began allowing wives to bring their own cause of action for loss of the relationship they formerly enjoyed with the person who was injured. In 1971, the Florida Supreme Court held that a wife has the right to sue for loss of consortium when her husband is injured due to negligence or other actionable causes.

So who can recover damages for loss of consortium? The injured person can recover, and the injured person’s spouse can bring a derivative action to recover damages for loss of consortium. Because the spouse’s right to bring the action is derivative, it only becomes effective if the court finds that the injured person has a cause of action for the loss against the same defendant. In some cases, children and parents have the right to file a claim for loss of parental or filial consortium for the loss of companionship of an injured parent or child.

The loss of consortium is a separate and distinct loss for the injured person and spouse. But other losses are not. For instance, when a wife is injured and unable to work, the husband loses the income that his wife would have provided, but the wife’s recovery for loss of income covers the loss of income for the couple as a whole, so the husband does not have the right to file a separate claim for loss of income.

It is important to note that a couple must be legally married at the time of the injury for the spouse to have a derivative right to file a claim for loss of consortium. A fiancé, live-in partner, or “common law” spouse does not have any legal right to recovery for this element in Florida.

Proving Loss of Consortium

You would think it would be obvious what couples lose when one of them is injured. But insurance companies will fight anything, so it is necessary to prove that a spouse suffered a real loss to receive compensation for loss of consortium.

Generally, that means proving that the injuries were and are so severe that they prevent the person from functioning as they did before the injury. There are no records that can establish this change the way medical records can establish the existence of an injury. But there is evidence that can be used to demonstrate loss of consortium. 

Family members and friends can testify to changes in the injured person’s condition and to the ways the person used to interact with and support the family, compared with the limitations that exist currently. In addition, the injured person and family members can keep a journal documenting how the injured person’s condition prevents them from doing things on a daily basis and the physical, mental, and emotional impact the losses are having on the family’s life. Testimony from mental health professionals may also be helpful.

Searcy Denney Tallahassee Fights for Maximum Compensation for Loss of Consortium

Within seconds, a hospital’s mistake or collision involving a truck, car, or motorcycle could change your life forever—even if you were not there at the time. When a spouse, parent, or child is injured, you can lose a vital part of your own life.

At Searcy Denney Tallahassee, we can’t restore what you’ve lost. But we can help you obtain justice and find peace so that you can move forward with your life. To discuss a loss-of-consortium claim or any injury matter, contact our team for a free consultation today.