§78.6 Loss of Consortium Claim for the Death of a Child
The Case: Hancock v. Chattanooga-Hamilton County , 54 S.W.3d 234 (Tenn. 2001).
The Basic Facts: Plaintiffs brought a wrongful death action against the hospital and doctor their child died while in Defendants' care. Plaintiffs later moved to amend their complaint to include a loss of consortium claim.
The Bottom Line:
- "We granted appeal to determine 1) whether filial consortium losses are recoverable in wrongful death actions; and 2) whether the medical malpractice statute of repose, Tenn. Code Ann. § 29‑26‑116, bars the plaintiffs' amendment to the complaint to include consortium damages. We hold that (1) filial consortium damages are recoverable under Tenn. Code Ann. § 20‑5‑113 in wrongful death actions; and (2) the plaintiffs' amendment to the complaint to include consortium damages does not state a new cause of action and is therefore not barred by Tenn. Code Ann. § 29‑26‑116." 54 S.W.3d at 234.
- "Section 20-5-113 of the Tennessee Code Annotated states:
Where a person's death is caused by the wrongful act, . . . of another, and suit is brought for damages, as provided for by §§ 20‑5‑106 and 20‑5‑107, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.Tenn. Code Ann. § 20‑5‑113 (emphasis added)." Id. at 236.
- "In Jordan, we interpreted this language to permit the recovery of 'incidental damages' suffered by the decedent's next of kin. Jordan, 984 S.W.2d at 600. Incidental damages include the pecuniary value of the decedent's life. Jordan, 984 S.W.2d at 600. 'Pecuniary value has been judicially definedto include 'the expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill, any art, trade, profession and occupation or business, and personal habits as to sobriety and industry.'' Id. (quoting Spencer v. A‑1 Crane Serv., Inc., 880 S.W.2d 938, 943 (Tenn. 1994)). We concluded that 'pecuniary value' also includes consortium damages, which consist of tangible services provided by a family member and also intangible benefits each family member receives from the continued existence of other family members. Id. at 602. 'Such benefits include attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations.' Id." Id.
- "In Jordan, an adult child was allowed to recover damages for the loss of parental consortium. Id. at 601‑02. Our decision in Jordan did not reach the issue of whether Tenn. Code Ann. § 20‑5‑113 allows recovery for the loss of consortium of one's child. With that issue now squarely before us, we extend our holding in Jordan to allow recovery of filial consortium damages. The loss of a child may result in the same loss of consortium as is caused by the loss of a parent. Nothing in the language of Tenn. Code Ann. § 20‑5‑113 or in our holding in Jordan provides a valid distinction between recovery for parental consortium damages and recovery for filial consortium damages. Instead, our holding in Jordan was founded on the basic premise that the pecuniary value of a person's life includes loss of consortium." Id.
- "Interpreting Tenn. Code Ann. § 20‑5‑113 to include filial consortium damages is also consistent with the trend of modern authority. Consortium damages historically have been available to the spouse of an injured person to compensate for the loss of the injured spouse's service and society. In recent years, however, numerous jurisdictions have broadened consortium damages to include loss of comfort, companionship, and support in the parent-child relationship. Filial consortium damages are available to parents in wrongful death actions in a majority of jurisdictions through explicit statutory language or judicial interpretation of wrongful death statutes that are similar to Tennessee's statutes.FN2 Our interpretation of Tenn. Code Ann. § 20‑5‑113 is therefore supported by modern society's understanding of the role of a child in the family unit.
FN2 Thirty-two states allow recovery for filial consortium damages. Among these states, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, North Carolina, Ohio, Oklahoma, Virginia, Washington, and Wisconsin expressly allow recovery of filial consortium damages pursuant to statute. Alaska, Arizona, Hawaii, Idaho, Illinois, Louisiana, Minnesota, Mississippi, Montana, Nebraska, New Jersey, North Dakota, South Carolina, South Dakota, Texas, Utah, and Vermont permit recovery of filial consortium damages pursuant to interpretations of statutory language such as 'pecuniary loss,' 'general loss,' and 'fair and just.' See [Mark L. Johnson, Compensating Parents for the Loss of Their Nonfatally Injured Child's Society: Extending the Notion of Consortium to the Filial Relationship, 1989 U. Ill. L. Rev. 761, 770‑71 (1989)].Id . at 236-37.
New Mexico has allowed recovery for filial consortium damagesalthough the claim was not based on a wrongful death statute. Fernandez v. Walgreen Hastings Co., 126 P.2d 774 (N.M. 1998); but see Wilson v. Galt, 668 P.2d 1104 (N.M. Ct. App. 1983) (refusing to allow recovery for loss of filial consortium under the wrongful death statute). In addition, California allows recovery for loss of filial consortium damages but limits such damages to the loss of earnings and services of a child. Baxter v. Superior Court, 563 P.2d 871 (Cal. 1977)."
Other Sources of Note: Rains v. Bend of the River , 124 S.W.3d 580 (Tenn. Ct. App. 2003) (stating in dicta that it is unlikely that Tennessee law would permit siblings to recover damages for loss of sibling consortium in wrongful death case).