IN MANY MEDICAL malpractice lawsuits, one of the largest claims is for loss of consortium. For doctors and medical providers, loss of consortium claims can feel especially personal because they focus on the human relationships affected by a bad result. A spouse might claim the loss of companionship, help around the home, or the everyday support that existed before an injury or death. The loss of a parent’s guidance and nurturing can have a profound effect on the growth and development of minor children.
In Kentucky, these claims have traditionally been limited to certain relationships, including spouses, parents of minor children in wrongful death cases, and minor children who lose a parent. Plaintiffs are now beginning to argue that adult children should also be able to bring claims for the loss of a parent, and in several states, these claims have begun to be permitted.
Legally and historically, consortium focuses on losses in the immediate household, intimate spousal relations, or the basic and critical care a minor child needs while growing up. Thus, when a parent who is older passes away, the surviving independent adult children generally cannot recover damages for the loss of that relationship under current Kentucky law. However, it is an issue being raised more often in litigation and one that providers should recognize as part of the damages picture.
Loss of consortium is a claim that allows the injured party’s spouse or minor child to recover damages for the injury to the relationship. In other words, the loss of consortium, which is defined in KRS 411.145, to mean “the right to the services, assistance, aid, society, companionship and conjugal relationship” of the spouse. While the conjugal relationship is part of the claim, it is not often the focus for juries; instead, they are largely concerned with the intangibles of relationships such as loss of companionship, friendship, and assistance.
Parents can also recover for loss of consortium under KRS 411.135 when a minor dies from the negligence of a third party. This statute provides recovery for loss of affection and companionship “that would have been derived from such child during its minority.” In other words, the law allows recovery for the mental distress and anguish a parent suffers when a child dies.
The last type of recoverable loss of consortium concerns the claim by a minor child when a parent dies from the negligence of a third party. This claim was not created by statute, but is a court created claim. In Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997), the Kentucky Supreme Court recognized that minor children may recover for the loss of a parent’s “love, care and protection” because those things are essential to a child’s development.
Over the years, juries in Kentucky have become more likely to award large sums of money related to loss of consortium claims. If a lawsuit is filed, physicians are unable to prevent a loss of consortium claim also being brought by the surviving family. Juries are often very protective of children who lose a parent, recognizing that this relationship is irreplaceable and the impact on the dependent child’s future is significant. Additionally, juries can also be very protective of the loss of a spouse, particularly if they view the death as preventable.
So what can medical providers do to prevent or mitigate against these types of damages? The best thing to do is to communicate fully and extensively with the patient and family members before beginning treatment options. Additionally, document, document, document! That way, when a bad result occurs, the medical chart fully supports that the patient was aware of the risks and benefits of treatment, and contains the information needed to possibly forestall or mitigate the effects of a lawsuit.
Andrew DeSimone is an award-winning medical malpractice defense attorney at Sturgill, Turner, Barker & Moloney, PLLC. He may be reached at 859.255.8581 or adesimone@sturgillturner.com. This article is intended as a summary of state and/or federal law and does not constitute legal advice.