Loss of Consortium: The Spouse's Claim in an Ohio Injury Case

Published October 1, 2013 · Injury Law Basics

The person who calls our office is usually the one who was hurt. But in a serious-injury case there is almost always a second person on the line, or in the waiting room, or at home managing the household alone: the husband or wife. That spouse has been driving to appointments, lifting, bathing, sleeping in a chair at the hospital, and absorbing a partner's frustration and pain. Ohio law recognizes that this spouse has suffered a loss of his or her own. It is called loss of consortium, and it is a separate claim with its own value.

What "consortium" means

Consortium is a legal word for what a marriage provides: companionship, affection, comfort, help around the house, sexual relations, and the sharing of daily life. When an injury takes those things away, in whole or in part, the uninjured spouse has lost something real. The Ohio Supreme Court has described the elements of consortium as society, services, sexual relations, and conjugal affection, which includes companionship, comfort, love, and solace.

Ohio's damages statute also names it. R.C. 2315.18(A)(4) defines "noneconomic loss" to include loss of "society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel," and similar intangible harms. Consortium is therefore a recognized category of damages, not a courtroom novelty.

It is the spouse's own claim

The most important thing to understand is that the consortium claim belongs to the uninjured spouse, not to the injured one. In Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84 (1992), the Ohio Supreme Court addressed a wife's consortium claim after her husband was hurt at a racetrack. The defendants argued that a release the husband had supposedly signed barred her claim too. The Court disagreed. It held that a spouse's action for loss of consortium is a separate and distinct cause of action that cannot be defeated by a release the spouse never signed, because the claim is the spouse's own property arising from the spouse's own loss.

That principle has practical consequences:

• The spouse is a named plaintiff in the lawsuit, with a claim that is valued separately.
• A settlement should account for the spouse's claim expressly. If it does not, the spouse's loss has been given away for nothing.
• The spouse can testify, in his or her own words, about what has changed in the marriage.

It is still tied to the underlying injury

The claim is "derivative" in one sense: it depends on the defendant having committed a legally recognized wrong against the injured spouse. If the injured spouse has no valid claim, there is no consortium claim either. And Bowen held that the injured spouse's share of fault may be imputed to the consortium claim, so under Ohio's comparative-fault rules a spouse's recovery can be reduced by the injured partner's percentage of fault. We explained how comparative fault works in an earlier post.

What about children and parents?

A year after Bowen, the Supreme Court extended consortium-type claims within the family. In Gallimore v. Children's Hosp. Med. Ctr., 67 Ohio St.3d 244 (1993), a child was rendered profoundly deaf by medical negligence. The Court held that a parent may recover for loss of the injured child's "filial consortium," which it defined to include services, society, companionship, comfort, love, and solace. In the same decision the Court overruled its own 1992 decision in High v. Howard and held that a minor child has a claim for loss of parental consortium when a parent is seriously injured.

Those claims are more limited than the spousal claim and, in practice, are brought mainly in catastrophic cases: a parent who can no longer care for young children, or a child whose injury permanently alters the family. The Court was explicit in Gallimore that it was not extending the claim to siblings, grandparents, or other relatives.

When an injury is fatal, the analysis changes. Loss of society is then part of the wrongful-death claim brought on behalf of the surviving spouse, children, and parents, which we covered in our post on who can bring a wrongful-death claim.

How a consortium claim is proven

Because the loss is intangible, proof comes from the people who lived it. In a serious-injury case we typically develop:

• The "before and after" picture. What the couple did together before the injury, from working side by side to coaching a child's team, and what the injured spouse can no longer do.
• The caregiving burden. Hours spent on wound care, driving, lifting, medication management, and supervision, often documented in a simple log the spouse keeps from the start.
• Changes in the relationship. Loss of intimacy, irritability from chronic pain, depression, and the strain of role reversal. These are difficult subjects, and a spouse's honest testimony about them is often the most persuasive evidence in the case.
• Corroboration. Friends, adult children, clergy, and treating providers who observed the change.
• Medical linkage. Testimony that the injury, not something else, caused the limitations, which matters most when the injured spouse has a pre-existing condition.

The consortium claim is strongest when the underlying injury is permanent. A spinal fusion that leaves one spouse unable to lift a grandchild, a brain injury that changes personality, or an amputation produces a consortium claim of real value. That is one reason we emphasize documenting the full scope of a serious injury, including the economic side we discussed in our post on lost wages and earning capacity.

Common mistakes

Leaving the spouse out of the claim. Adjusters do not volunteer that the spouse has a claim. If a demand is made only for the injured person, the consortium claim is usually lost in the release.

Waiting too long. The consortium claim is generally subject to the same deadlines as the underlying injury claim. It should be asserted from the beginning, not added at the last minute.

Treating it as an afterthought. Some lawyers tack on a consortium count and never develop it. A spouse's claim, properly documented, can be a significant part of a serious-injury recovery, and it gives the jury a second human being to understand.

Oversharing on social media. Photos of a couple at a wedding or a cookout will be used to argue that nothing has changed. The spouse's claim, like the injured person's, is undermined by a public record that does not match the private reality.

What this means for you

If your husband or wife was seriously hurt by someone else's negligence, you have your own claim. It is not greedy to assert it; it is the law's recognition that an injury to one spouse is an injury to the marriage. Keep a simple record of what you are doing for your partner and what the two of you have lost, and make sure whoever handles the case includes your claim from the start. Our personal injury practice treats the spouse as a client, not a footnote.