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What is a Loss of Consortium Claim?

Posted June 08, 2018

By Jonathan A. Karon

In Massachusetts, the law recognizes that the spouse of an injured person also suffers a “serious, identifiable and predictable” harm. Spouses routinely depend upon each other for love, support and companionship. The word the law uses to refer to this mutual dependence is “consortium”. When a spouse’s injuries interfere with a couple’s previous enjoyment of their marriage, the non-injured spouse is said to have suffered a “loss of consortium”.   Accordingly, a husband or wife has their own, independent, claim for loss of consortium if their spouse is injured due to the negligence of a third party. The claim belongs to the non-injured spouse and can be brought whether or not the injured spouse files suit for their injuries. Because it is an independent claim, any comparative negligence on the part of the injured spouse will not reduce the non-injured spouse’s recovery. Interestingly, however, it is not considered a separate claim for the purpose of increasing the amount of available liability coverage in an automobile insurance policy.

Please note that I am using the term “non-injured spouse” as shorthand for the spouse who did not suffer a physical injury. A loss of consortium is a real loss and in an important sense a real injury. A spouse’s physical injury can prevent a couple from enjoying activities together, ruin their sex life, force the non-injured spouse to assume major responsibilities for house-hold chores and childcare, and strain the fabric of their marriage. As one court noted, in cases of severe injury it can turn a spouse from “a loving wife [or husband] into a lonely nurse.”

The Massachusetts Supreme Judicial Court has consistently held that a couple must be legally married at the time of the injury for the spouse to pursue a claim for loss of consortium. In two separate cases, Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987) and Fitzsimmons v. Mini Coach of Boston, Inc., 440 Mass. 1028 (2003) the S.J.C. specifically held that unmarried persons, even those living together in a long-term committed relationship, could not bring a claim for loss of consortium. The Court appeared to give weight to the fact that the couples could have married if they choose to do so.

All of which led to a very interesting Massachusetts case decided in 2008, Charron v. Amaral, 451 Mass. 767 (2008). The plaintiffs were a same sex couple in a long term committed relationship who were legally forbidden to marry at the time the alleged medical malpractice occurred. They literally applied for a marriage license the first day that it was allowed following the decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003) which legalized same sex marriage in Massachusetts and married three days later. The defendant sought to dismiss the consortium claim on the grounds that the couple were not married at the time the malpractice took place. While expressing some sympathy for the plaintiffs’ position, the Court upheld dismissal of the consortium claim.  That the situation can’t arise in the future was, I’m sure, of little comfort to the plaintiffs.

It should also be noted that interference with other family relationships can give rise to loss of consortium claims. In certain circumstances, children may bring claims for loss of parental society and companionship and parents can bring claims for loss of their children’s society and companionship. These claims are much less common than claims by the non-injured spouse for loss of consortium

Whether or not to bring a consortium claim in any given case always requires careful consideration. Most folks believe spouses agree to their marriage “for better or for worse” and a jury may not be sympathetic to a non-injured spouse’s claims for minor, temporary inconvenience caused by their spouse’s injuries. But at the same time, where an injury is severe and the effects on a marriage significant, juries routinely recognize that there’s no such thing as the “non-injured spouse”.

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