When someone suffers an injury due to another person’s misconduct or carelessness, the victim usually files a claim. However, there are at least three instances under Pennsylvania personal injury laws where a third party is also entitled to file a claim—wrongful death claims, survival actions, and loss of consortium claims.
In Pennsylvania, the spouse of an injured victim can seek a verdict or settlement for their own losses based on a loss of consortium. The assertion is that the defendant indirectly harmed the victim’s spouse by injuring the victim. The derivative nature of this claim affects the question of liability and the amount of compensation that might be available.
The Precondition for Liability in a Loss of Consortium Claim
The most important precondition for liability in a loss of consortium claim is that your spouse must have suffered an injury caused by someone else’s misconduct. In other words, your spouse must have or have had a valid personal injury claim.
Since your claim is derivative rather than stand-alone, you cannot maintain a viable claim unless your spouse’s personal injury claim is successful.
What is “Consortium”?
“Consortium” is a legal term that includes:
- Sexual relations
- Domestic services (parenting, housework, etc.)
- Love and affection
- Guidance and support
Someone who loses any of these aspects of consortium because a defendant’s misconduct injured their spouse might have a loss of consortium claim.
Calculating the Value of a Loss of Consortium Claim
It can be challenging to prove the value of a loss of consortium claim since it’s a non-economic damage that is personal to the claimant.
Pennsylvania courts measure the loss of consortium by comparing the amount of “consortium” you enjoyed before the accident with how much you enjoyed after the accident. They also consider the length of time this loss of consortium is likely to continue.
The court will consider the following factors:
- The strength of your marriage before the accident and how strong it is now
- The division of housework and responsibilities between you and your spouse before and after the accident
- Whether you were usually on good terms before the accident versus the state of your relations now
- Whether you were involved in an intimate relationship before the accident and how your intimacy declined in quality or frequency since then
- The age and remaining life expectancy of each of you (e.g., young claimants can usually demand more money than older claimants because their loss of consortium will continue throughout a longer remaining lifespan)
The court may consider other factors depending on the facts and circumstances of your situation.
Are You Willing to Put the Most Intimate Details of Your Relationship in the Spotlight?
You can see that the subject matter of a loss of consortium claim is extremely intimate. Many spouses refrain from asserting such a claim out of sheer modesty alone.
Before you decide to pursue this claim, closely examine your feelings about revealing private details to a court, such as the average number of times you have sexual relations with your spouse per month. Are you willing to answer questions on this topic from a hostile defense attorney?
Other intimate details you or a medical expert witness have to discuss may include:
- The extent to which your spouse is still capable of intimacy. If your spouse is unable to engage in sexual activity because of their condition, you may have to reveal this.
- How often you argue (before and after the accident), and what you usually argue about. If you say you had a good relationship before the accident, the defense attorney will try to prove otherwise.
- The extent to which you are satisfied or dissatisfied with the quality of your intimate relationship with your spouse.
- Whether you have ever cheated on your spouse.
- Whether, to the best of your knowledge, your spouse has ever cheated on you. A defense attorney may try to prove adultery.
The defense attorney has an interest in causing you enough embarrassment to encourage you to drop your claim. Your personal injury lawyer can coach you on your testimony to make this experience as easy as possible for you.
Contact an Experienced Personal Injury Lawyer for Help With a Loss of Consortium Claim
Loss of consortium is a derivative personal injury claim. They can be challenging to prove and value. They can also be difficult to navigate tactfully without an experienced lawyer who understands the emotional dynamics at play.
If you are considering filing a loss of consortium claim, contact a lawyer who has litigated and won such claims before.