Damage to Your Marriage - Loss of Consortium
When you’re injured as a result of someone else’s negligence, you are entitled to recover for the injuries that you suffered, including economic damages (lost wages, medical bills, etc.) and non-economic damages (pain and suffering). However, if you’re married, there is another category of damages that you may be able to recover – damage to your marriage. It’s called Loss of Consortium and is an important element of damages in the right circumstances. It is a legal recognition that the marital relationship itself – separate and apart from the injury to the individual – is a protected interest that is deserving of compensation if it has been harmed.
Loss of consortium has an interesting history. Under Common Law (which roughly translates to “the olden days” in this circumstance) a woman had no right to sue for loss of consortium. It was only the man who had the right. That was because the woman was essentially seen as the man’s property. If she was unable to provide her usual domestic or bedroom duties as a result of someone else’s negligence, the man could recover for the loss of such services. Eventually, the courts (most courts, at least) recognized the unfairness of such a one-sided system and ruled that women could also make such a claim if their husband suffered an injury. However, there are still some states (Virginia, for example) that do not recognize loss of consortium at all, no matter who tries to bring it.
Back to the present day. A loss of consortium claim arises when one spouse suffers a serious injury that impairs the marital relationship. An easy example is if a husband loses a leg as a result of a doctor’s negligence. In that circumstance, the man would be able to file a claim for his own damages, of course, but he and his wife could also allege loss of consortium because the loss of the leg impacts the marriage. The couple will now find it more difficult to do the things they use to do together as man and wife – going out together, caring for their children, taking vacations, intimacy, and the day-to-day marital difficulties that arise because the husband is now missing his leg. In Maryland, a jury can award monetary damages for the couples’ loss of companionship, affection, assistance and yes, sexual relations. It is difficult to put a dollar figure on such injuries, but the law recognizes the right of a husband and wife to recover financially if their marriage has been damaged. How much money to award for such injury is for the jury to decide.
Speaking of intimacy, some pundits say that loss of consortium is just a code-word for damage to the couples’ sex life. This is not entirely true as the marital relationship entails far more than just sex, but these pundits have a point. A loss of consortium claim usually does include an allegation that the couples’ sex life has been impacted. If you allege loss of consortium, you have to understand that you are opening up the door on the most intimate parts of your life. Defense attorneys will often ask highly personal questions – how often did you have sex before the injury, how often do you have sex now, how exactly does the injury make sex more difficult, have either of you ever strayed from the marriage, etc. Some couples are understandably reluctant to discuss such things. Thankfully, most defense attorneys are just as uncomfortable asking these questions as the plaintiffs are answering them, so the questions tend to be over with relatively quickly. Be aware, though, that if you do file a loss of consortium claim, your sex life may become an issue in open court.
In the District of Columbia, a loss of consortium claim is for similar damages, but with a slight difference. While in Maryland the claim belongs to both the husband and the wife and is brought by them jointly, in the District of Columbia the claim belongs solely to the non-injured spouse. Any money awarded by the jury for loss of consortium goes to the non-injured spouse rather than to the couple jointly.
Lastly, Maryland’s cap on non-economic damages applies to claims for Loss of Consortium. There is no separate cap for this claim. In other words, there is a single cap that applies to all allegations of injuries, whether it’s an injury to the individual or an injury to the marriage.