What is Loss of Consortium?

Loss of consortium is a type of damage that can arise in an injury or death case. Loss of consortium damages are available to the spouse of an injured person, and a Tennessee Court of Appeals has defined them as follows: “the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation”. Loss of consortium must be specifically alleged as a separate claim in the complaint filed with the court.

Perhaps, the best way to understand loss of consortium damages is to review the pertinent jury instruction, Tennessee Pattern Instruction, Civil 14.20 – Personal Injury – Spouse. A jury instruction is exactly as it sounds – it is an instruction the judge reads to the jury at the conclusion of a trial to help guide the jury in its deliberation. A copy of the instructions is also provided to the jury.

In Tennessee, the loss of consortium jury instruction states that if the jury finds for the plaintiff (the injured person) then the jury should also determine an amount of damages for the spouse (again, the spouse must be a plaintiff to the lawsuit and specifically allege loss of consortium damages). In determining how much the spouse of the injured person should receive, the jury is told they should consider the following elements of damage if established by the evidence during trial:

1. The reasonable value of medical care, services and supplies reasonably required and actually given in treatment of the spouse;
2. Expenses reasonably incurred in attending the spouse in the hospital;
3. The reasonable value of the injured spouse’s services lost and the present cash value of such services the plaintiff is reasonably certain to lose in the future;
4. The reasonable value of the spouse’s companionship and acts of love and affection this plaintiff has lost and the present cash value of such acts that is reasonably expected to be lost in the future but would have received in the usual course of the parties’ married life.

As stated above, a spouse’s loss of consortium claim is a separate claim from the injured person’s claim but it is derivative. Therefore, if the injured person was partially at fault for his or her injuries, then that percentage of fault will reduce the loss of consortium damages. For example, in a car accident case, let’s assume the jury finds the injured plaintiff 10% at fault for the accident and the defendant (other driver) was 90% at fault for the accident. Let’s further assume the jury awarded the spouse of the injured party $100,000 for the loss of consortium claim. The judge would then reduce the $100,000 award by 10% because of the injured person’s fault.

Currently, the Tennessee Supreme Court is considering whether the injured party’s claim and the spouse’s loss of consortium claim are subject to two separate caps on damages or if they are both subject to a single cap on damages. In 2011, the Tennessee Legislature passed “Tort Reform” and placed a cap on the amount of damages a jury can award for non-economic damages. In most cases, the cap is $750,000 and in a handful of cases it is $1,000,000. Notably, these caps apply regardless of the type of injury including paralysis, traumatic brain injuries, significant burns, loss of limbs, etc. The Court of Appeals has ruled that the injured person’s claim and the loss of consortium claim are subject to two separate caps, so each plaintiff would be capped at $750,000 or $1,000,000 each depending upon the type of case. So conceivably, if the jury concluded the proof warranted it, the plaintiffs could jointly recover $1.5 or $2 million dollars. If the Supreme Court disagrees, then both the injured party’s claim and the loss of consortium claim would be capped at $750,000 or $1,000,000 depending upon the type of case.

As mentioned above, loss of consortium damages can also be recovered in a death case but the rules are more varied and complex.

If you would like to discuss an accident case or loss of consortium damages, give us a call. We do not charge a cent to review your case with you, and our award-winning lawyers handle all accident cases on a contingency basis so we only get paid if we recover money for you and your family.

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