When a serious injury affects one spouse, it almost always affects the other. The healthy spouse may have to take on caregiving duties, lose intimacy and companionship, and watch their partner struggle through pain and disability. Delaware law recognizes this harm through the loss of consortium claim — a separate cause of action that allows the uninjured spouse to recover damages.
The Detailed Answer
What Loss of Consortium Covers
Loss of consortium damages traditionally include:
- Loss of companionship and affection
- Loss of sexual relations
- Loss of household services the injured spouse used to perform
- Loss of moral and emotional support
- The burden of providing care to the injured spouse
Derivative Nature of the Claim
Loss of consortium is a derivative claim. That means it depends on the injured spouse having a viable underlying claim. If the injured spouse cannot recover — for example, because of a successful comparative negligence defense exceeding 50% — the consortium claim generally fails as well. Settlements and verdicts may also be reduced by the injured spouse’s share of fault.
Who Can Bring the Claim
Delaware recognizes loss of consortium claims for legally married spouses. The marriage must generally have existed at the time of the injury. Delaware does not broadly recognize parental or filial consortium claims in the same way some other states do, though specific statutory remedies may apply in certain wrongful death contexts under 10 Del. C. § 3724.
How Loss of Consortium Is Proven
Proof typically involves testimony from both spouses, sometimes from family members or counselors, and medical records describing the limitations imposed by the injury. The jury is asked to value intangible losses — a difficult but recognized exercise.
What This Means for Your Case
If your spouse was seriously injured by another party’s negligence, you may have a separate claim for the impact on your marital relationship. Loss of consortium claims are most often pursued in catastrophic injury, medical malpractice, and wrongful death contexts, though they may be appropriate in any case involving significant lasting harm.
Related Questions
Q: Can children bring consortium claims in Delaware?
Delaware does not generally recognize a child’s claim for loss of parental consortium in standard personal injury cases, though wrongful death recovery may include certain relationships under 10 Del. C. § 3724.
Q: Does the injured spouse’s negligence affect my consortium claim?
Yes. Because the claim is derivative, comparative fault attributable to the injured spouse may reduce or bar the consortium recovery.
Q: How much is a loss of consortium claim worth?
Value depends on the severity and permanence of the underlying injury, the strength of the marriage, and the credibility of the testimony. There is no formula.
When to Talk to a Delaware Personal Injury Lawyer
If your spouse has been seriously injured, both of you may have claims worth discussing. Schuster Jachetti LLP has experience handling Delaware personal injury matters that include consortium claims. Visit our attorney page or call to schedule a confidential consultation.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.