Along with the usual damages sought in a personal injury claim, loss of consortium might also be raised by the non-injured or surviving spouse. The legal notion of consortium has been recognized as an element of damages as the right to the conceptualistic unity and conjugal fellowship between a husband and wife. A claim for loss of consortium is sometimes found in personal injury and wrongful death cases when a spouse has been injured or killed as a result of the negligence of a third person. Along with conjugal fellowship, consortium also includes the society, assistance and affection of an injured or deceased spouse, along with sexual relations. The notion of loss of consortium is codified in KRS 411.145.
When spousal consortium terminates
The language of KRS 411.145 is silent on whether a spousal consortium claim ends at death or continues on past death. The issue was ultimately decided by the Kentucky Supreme Court in 2009 when it decided that consortium damages with spouses continue on after death. The decision was consistent with the majority of other states where the issue was either legislated or litigated. It made Kentucky one of the last states to recognize loss of consortium after death. The fact that after death consortium loss was recognized by Kentucky so late left it with no real law on how to assess damages on the issue. Courts looked to decisions of other states on the issue and began incorporating that law into their decisions.
Parental loss of consortium
Parents in Kentucky may also recover damages for the loss of affection and companionship of a minor child. As opposed to a spousal claim though, damages may only be sought in a wrongful death claim. Damages do not extend beyond the child’s minority.
Child’s loss of consortium for parent
A child in Kentucky can make a claim for loss of consortium for the death of a parent. The claim is limited to the relief provided in Kentucky’s wrongful death act. The right doesn’t extend to emancipated adult children. Stepchildren who were not legally adopted cannot maintain a loss of consortium claim for the death of a stepparent.
Caution with spousal consortium claims
When loss of consortium damages is claimed in a spousal context, another door opens. The attorney representing the allegedly negligent party will be granted broad latitude in inquiring into the spouses’ marriage, including their sexual relations. This might open not only sensitive but also messy issues for husband and wife, resulting in a loss of credibility in the injury case as a whole. Loss of consortium must be carefully considered.
At the Gladstein Law Firm, we represent people who have been injured by the negligence of somebody else. We concentrate on serious personal injury and wrongful death from accidents and medical malpractice. Each and every case that comes into our office is given our personal attention. If you, a family member, or somebody close to you has been injured as the result of the negligence of somebody else, contact us right away or fill out our online contact form. We are available 24/7 and we will certainly be happy to discuss consortium as part of a case.