Loss of consortium: Injured person’s spouse may seek compensation

Claims may be based on diminished sexual relations or ability to have children

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Alejandro C. from Sunset writes: A good friend of mine’s wife got into a really bad car crash, where she broke her leg and got a concussion. The accident was not her fault; she was hit by a drunk driver who ran a red light. It has been almost two years, and she is still not back to normal. She walks with a limp, and she is forgetful and cranky with him and their children. My friend also told me he and his wife have only been intimate a handful of times since the cast was taken off her leg. He is at his wits’ end and I do not know what to tell him, or how to be supportive. Do you have any advice?

Dear Alejandro: I’m so sorry your friend’s family is going through these horrible injuries, but it is wonderful that you are there for him and want to be as supportive as possible.

First, your friend’s spouse, we can call her Jane, has a claim for her personal injuries. She can, within two years, make a claim for her medical bills and lost wages in addition to her pain and suffering against the driver who hit her.

Now your friend, we can call him John, has a claim for his loss of consortium against the driver who hurt his spouse. The California Civil Code allows John to make a claim, assuming 1) his marriage was valid and lawful at the time of Jane’s injuries; 2) his spouse suffered a tortious injury; 3) he suffered a loss of consortium; and 4) his loss was proximately caused by the tort defendant’s act.

John’s loss of consortium claim will be valued based on his loss of his spouse’s love, companionship, comfort, care, assistance, protection, affection, society and moral support; as well as the loss of the enjoyment of sexual relations and/or the ability to have children. (In this context, “loss” can also mean a change to or diminished amount of the attributes listed above.)

John’s claim would be for both the past loss of these elements in his relationship with his spouse as well as what he is reasonably certain to suffer in the future. Because of the changes you mentioned in their relationship, a loss of consortium claim appears reasonable for John to make. In deciding to make this type of claim John and Jane both would have to evaluate the loss and make a joint decision if they want to discuss the changes in their relationship with attorneys and potentially a jury. It can be very private; sometimes, despite the validity of the claim, couples elect not to proceed.

Alternative forces that change the relationship and/or pre-existing issues, if any, would need to be openly discussed with counsel to make a complete recommendation in going ahead with a loss of consortium claim before any litigation is commenced. It is also important to note, that despite the similarities of the companionship, care, comfort, society, etc., in the relationship between parents and children, a loss of consortium claim is only available to married spouses. Jane and John’s children would not be able to make a claim for the changes in their relationship with their mother because of her injuries.

Separate and apart from the legal claims Jane and John may elect to bring, there are additional resources that may help your friend. There are numerous state and national support groups for both traumatic brain injury patients and their families. First, your friend can check with his health insurance coverage. The insurance provider’s website may direct him to support groups, literature or individualized help.

John can also look to the county level; most counties have resources for injured persons. To demonstrate the breadth of options, San Francisco General Hospital as well as many private local hospitals run traumatic brain injury support groups that meet weekly or monthly.

The Brain Injury Association of California educates and provides resources for survivors, caretakers, family, friends and others. As well, the National Alliance of Mental Illness has resources for brain injury survivors and their families. Many are available during the pandemic through video conferencing.

Your friend should evaluate the options and figure out with his spouse, which, if any, of these organizations and resources may aid them, as this decision is an individual one to be made by your friend and his spouse based on their family’s needs.

It is wonderful you are there to support, listen and help your friend. We are very sorry for the loss your friend’s family is enduring, and wish him the best in locating resources so they may move forward.

Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Megan Irish is a senior associate attorney based in the Oakland office. We serve clients throughout the Bay Area and California from offices in San Francisco, Oakland and Los Angeles. Email questions for future articles to: help@dolanlawfirm.com. Each situation is different and this column does not constitute legal advice. We recommend that you consult with an experienced trial attorney to fully understand your rights.

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