$1 Million Award for Loss of Consortium Claim

An important decision emerged from the Appellate Division (Second Dept) recently. The court evaluated a jury verdict on a medical malpractice case. Here, the jury returned a verdict of $3,000,000 for the pain and suffering sustained by Theresa Capwell and $4,000,000 for the loss of consortium to her husband. Ms. Capwell was treated at the Westchester Medical Center where her condition was mismanaged. Her respiratory condition led to brain damage and to her persistent vegetative state.

Upon review, the loss of consortium award of $4,000,000 was reduced to $1,000,000. To review, loss of consortium is essentially also “loss of services”. It is given to the surviving family members of injured parties. The amount is sometimes minimal because most juries look at physical injuries of the victim rather than the distress suffered by relatives. Some lawyers don’t even pursue it because it can be too small to bother with and handle the risks involved with its litigation.

Judges charge juries with the responsibility to look into the following when determining pecuniary loss:

In deciding the amount of such damages, you may take into consideration the nature and extent of the (husband’s, wife’s) services and society before the injury, including (his, her) disposition, temperament, character and attainments; the interest (he, she) showed in (his, her) home; the social life of (his, her) family and in the comfort, happiness, education and general welfare of the members of the family; the services (he, she) rendered in superintending the household, training the children, assisting (his, her) spouse in the management of the business or affairs in which the spouse was engaged, if any; (his, her) acts of affection, love and sexual intercourse and the extent to which the injuries (he, she) sustained prevented (him, her) from performing such services and providing such society.

You will award plaintiff (husband, wife) such an amount based upon the evidence and upon your own observation, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate (him, her) for the pecuniary loss that you find (he, she) has sustained and is reasonably certain to sustain in the future by reason of (his, her) spouse’s inability to perform such services and provide such society as a result of (his, her) injuries.

In this particular case, the husband was the breadwinner. And in the 11 months following the malpractice, the only relationship that existed between husband and wife consisted of him visiting her in the hospital, helping her relax, playing her favorite TV shows, touching her face, and watching her die.

Based on this case, it would seem that litigants would give more attention to loss of consortium that they used to.


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