Loss of consortium is a claim specific to spouses of injured accident victims. They are brought by the spouse of the injured individual, which is unique to most other civil damages claims.
If your spouse was recently hurt in an accident and your physical and emotional relationship has suffered, you may be entitled to compensation.
One of our experienced personal injury attorneys at Silva Law can provide a free case assessment to determine if you have a valid claim.
While these claims may not be as straightforward as proving your lost wages or incurred medical expenses, they are recoverable and can help individuals affected by their partner’s injury.
Please get in touch with us today to arrange a private consultation at no charge.
What Is the Loss of Consortium?
The California Civil Jury Instructions (CACI) provides a detailed definition and description of what constitutes loss of consortium.
According to CACI, loss of consortium is the loss of love, companionship, care, comfort, assistance, affection, protection, society, and moral support. It is also the loss of the enjoyment of sexual relations or the ability to have children if of childbearing age.
Damages for Loss of Consortium
The damages for a loss of consortium claim are considered subjective, non-monetary losses similar to pain and suffering, emotional distress, mental anguish, and more.
They do not include economic losses such as your injured spouse’s lost earning capacity, lost income (e.g., taking time off work to care for your spouse), or medical bills.
Because loss of consortium damages are subjective and personal to the individual, there is no standard or fixed calculation for determining the appropriate amount of compensation. Generally, the more severe and permanent the injury, the higher the compensation, but that is not always the case.
Significantly, loss of consortium damages differ from other damages you may seek in a personal injury or wrongful death claim.
You might be wondering, if there is no set formula, how is loss of consortium calculated? The simple answer is that it will be determined case-by-case, depending on the facts and circumstances.
The court will consider the severity of the injury and whether the victim is expected to recover fully or partially. The applicable insurance policy limits may also limit the amount you are compensated.
Notably, if medical malpractice is the cause of the injury, the victim’s spouse will only be able to recover a maximum of $250,000 for loss of consortium.
When discussing a potential loss of consortium claim with your attorney, it is essential to be transparent and honest about the extent of the loss. It is also a good idea to document as much as you can. It will be helpful later.
How Does Comparative Negligence Play a Role?
California is considered a pure comparative negligence state, which means if your spouse was partially at fault for the accident and injury, then your loss of consortium claim may be reduced by their percentage of fault.
For instance, if a jury awards you $100,000 for your loss of consortium claim, but your spouse is found to be 10% at fault for the accident, then you will only be entitled to $90,000.
What Do I Need to Prove for a Successful Loss of Consortium Claim in California?
Like any personal injury claim for damages, the plaintiff must prove their loss of consortium claim. To prevail, you must prove four prongs:
- There was a valid and lawful marriage or registered domestic partnership,
- Your spouse or partner was negligently or otherwise wrongfully injured,
- You suffered the loss of consortium, and
- The loss of consortium was caused by the injury to your spouse or partner.
To prove the compensation you deserve, your lawyer may work closely with a team of experts, including a therapist, marriage counselor, and physician, to help prove that the accident has had profound consequences on your marriage.
You will want to consider the following questions:
- Has your spouse’s injury impacted your relationship and daily life?
- Has your spouse’s injury affected your quality of life?
- Has your spouse’s injury negatively impacted their ability to provide companionship?
- Has the injury caused their inability to show love or affection?
- Are you and your spouse unable to enjoy sexual relations due to the injury?
- Has the injury impacted your spouse’s ability to have children?
- Are these consequences permanent or will they improve over time?
This list is not all-inclusive, and there may be other important questions to ask yourself when determining if you have a cause of action.
Statute of Limitations
If you believe you have a loss of consortium claim, consult a personal injury lawyer to preserve your right to file.
You generally only have two years from the date the injury was discovered to seek compensation for loss of consortium, so it is imperative to seek legal advice as soon as possible.
Accidents That Can Lead to Loss of Consortium Claims
Any accident or injury can potentially lead to a loss of consortium claim. If the injury affects someone’s ability to engage in activities with their spouse, they may have a valid lawsuit.
Common examples of personal injury accidents that may give rise to a claim for loss of consortium include motor vehicle accidents, slip and falls, defective products, and more.
In addition, instances of medical malpractice can give rise to loss of consortium claims. Even if your loved one died due to their injuries, you may still have a loss of consortium claim.
Loss of consortium can be both physical and emotional. Loss of consortium examples include:
- Lack of sexual relations or physical intimacy with your injured spouse;
- The inability to have children with your injured spouse;
- Your injured spouse can no longer engage in activities that the couple used to enjoy together, for instance, going on walks or bike rides together; and
- Your injured spouse is unable to show care, love, and affection due to anxiety, depression, PTSD, or irritability as a result of their injury.
Your loss of consortium claim will be personal to you and your marriage, and the court will look closely at the relationship before and after the injury.
California Loss of Consortium Attorneys
Loss of consortium claims are valid and deserve recognition and compensation. At Silva Injury Law, we never take upfront fees or costs from our clients. We won’t take a cent until you are paid.
Contact us today to schedule your no-cost, confidential consultation.