What is Loss of Consortium?
In Massachusetts, you have a claim for loss of consortium if your spouse suffers a serious injury and, as a result, you lose companionship, assistance, sexual relations or physical intimacy, social relations, household chores, and help with parenting.
Massachusetts juries are instructed how to evaluate this claim. Insurance companies take their guidance from jury verdicts in evaluating the claim. They look at the seriousness of the injuries, how it affects the spouse, the life expectancy of the parties, the stability of the relationship, and the extent of the loss because of the defendant’s negligence.
How is Loss of Consortium Apportioned in Massachusetts?
In 1973, the Diaz v. Eli Lilly case was decided, which established that a legally married spouse has the right to file his or her own claim against a third party that caused an injury to their spouse resulting in a loss of consortium. Goodrich v. Dept of Public Health extends this right to same-sex married couples. It is important to note that spouses must be married at the time of the accident.
This rule is also extended for a minor child and for a disabled or dependent child of an injured party. Parents may also have a loss of consortium under Massachusetts General Laws Chapter 231, Section 85X if their minor child is seriously injured as a result of the negligence of a third party.
Using Massachusetts Law to Maximize Benefits for the Family
In one case approved by Massachusetts Superior Court Judge Curran on October 7, 2014, 75% of the settlement proceeds were attributed to the wife in a traumatic brain injury (TBI) loss of consortium case. In this case, the husband suffered a TBI as the result of a work related accident; his wife stuck by him during the recovery and rehabilitation. He received workers compensation and had a claim against the various companies responsible for the negligent construction and supervision of the construction site where he was working. The court found that the injuries suffered by the husband forced his wife “to become a caretaker, rather than a partner, far too early in their marriage.”
The Court looked at the fact that a jury may find the husband’s contributory negligence very high and, in fact, may have limited the claim altogether. This would have reduced the total recovery. However, the wife’s claim was not subject to her husband’s comparative negligence. The court also looked at the fact that this settlement, which the court approved, still left one more defendant. The family still had a trial against that defendant.
Further, and perhaps critically, the husband’s recovery was subject to a health insurance lien, while wife’s loss of consortium is not. Finally, the same was true for the worker’s compensation lien; the wife had no obligation to pay towards that lien as she received zero from her husband’s workers compensation. This was an effective effort by the family’s lawyer.
Hire an Experienced Loss of Consortium Lawyer in Massachusetts
Burns & Jain has been representing families who are victims of personal injuries, injuries from fires, car accidents, and premises injury cases for over 30 years combined. Call 617-227-7423 for a free consultation.