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When someone is injured due to an accident, the physical and financial impacts are often the focus of legal action. However, in many cases, the emotional and relational toll on family members, particularly spouses, is just as significant. This is where a loss of consortium claim comes into play.

But what exactly is a loss of consortium claim, and how can it affect a personal injury case? In this blog, we’ll explore what loss of consortium is, who can file such a claim, and how it factors into a personal injury lawsuit.

What is Loss of Consortium?

Loss of consortium is a legal term used to describe the deprivation of the benefits of a relationship due to an injury or wrongful act. Typically, this claim arises in the context of a spouse or partner who has been seriously injured and is no longer able to engage in the same level of physical, emotional, or intimate connection with their significant other.

In simple terms, a loss of consortium claim compensates a family member—usually a spouse or partner—for the negative impact the injury has had on their relationship with the injured person. The loss may be physical, emotional, or even sexual in nature. It can be any kind of relationship loss as a result of the injury.

What Does Loss of Consortium Include?

Loss of consortium can involve several aspects of the relationship that have been disrupted or impaired by the injury. These typically include:

Loss of Companionship

The injured party may no longer be able to participate in activities, hobbies, or social events they once shared with their spouse or family. This loss can cause emotional distress and lead to a significant change in the family dynamic.

Loss of Affection

In some cases, an injury may affect the ability to share physical affection—hugging, kissing, holding hands—which is a key part of a romantic relationship.

Loss of Sexual Intimacy

Injuries can lead to physical limitations that affect a couple’s sexual relationship. This is often a critical part of a loss of consortium claim, especially if the injury has caused a permanent inability to engage in sexual activity.

Loss of Support

Many spouses or partners provide emotional, physical, and even financial support to one another. If one partner becomes injured and requires extensive care, the other spouse may lose the ability to provide or receive the same level of support they once had.

Loss of Services

If the injured spouse can no longer perform everyday tasks, such as household chores or childcare, the non-injured spouse may be forced to pick up those responsibilities or pay for outside help. This may also be a factor in a loss of consortium claim.

Who Can File a Loss of Consortium Claim?

While loss of consortium claims are most commonly filed by the spouse of the injured party, in some cases, other family members might be eligible to file as well, depending on the circumstances and the jurisdiction.

Spouses or Domestic Partners

The most common plaintiff in a loss of consortium claim is the spouse or domestic partner of the injured person. As the primary person affected by the injury to their partner, they are typically entitled to seek compensation for the emotional, physical, and relational damage that the injury has caused.

Parents or Children

In some cases, especially when a person is seriously injured or killed, children or parents may file a loss of consortium claim. For example, if a parent is seriously injured and no longer able to provide care, affection, or financial support to their children, the children may be entitled to compensation. This is less common but can be pursued in certain circumstances.

What Is Required to Prove Loss of Consortium?

To win a loss of consortium claim, the plaintiff (spouse, partner, or sometimes children) must prove several key elements. These elements will vary depending on the jurisdiction, but in general, the following must be established:

Proof of a Valid Personal Injury Claim

The injured party must have a valid personal injury claim. In other words, a loss of consortium claim is only applicable if there is already an injury claim in place, and the injury was caused by the negligence or wrongful actions of another party (e.g., in a car accident, slip and fall, or medical malpractice case).

Impact on the Relationship

The plaintiff must demonstrate that the relationship has been significantly impacted by the injury. This involves proving that the injured person’s condition has caused a decrease in companionship, affection, intimacy, or support.

Evidence of the Injury’s Severity

It must be shown that the injury is serious enough to warrant a loss of consortium claim. This often includes medical evidence detailing the injury’s effects, as well as testimony from the injured party and the plaintiff about how the injury has affected their relationship.

Duration and Permanence of the Impact

To strengthen a loss of consortium claim, the plaintiff may need to show that the impact on the relationship is not temporary but is expected to continue for a long period of time or be permanent. For example, if the injured person is expected to live with permanent disability, the loss of consortium claim may involve a larger compensation amount.

How Is a Loss of Consortium Claim Calculated?

The compensation for a loss of consortium claim can be more difficult to quantify than other types of damages, such as medical bills or lost wages. Since the loss is emotional and relational, courts or insurance companies often rely on subjective criteria to determine how much compensation is appropriate.

Some of the factors that may influence the value of a loss of consortium claim include:

Unlike other personal injury claims, loss of consortium claims do not typically involve economic losses, like medical expenses or lost wages. Instead, they focus on the non-economic aspects of the injury, such as emotional pain and the inability to engage in a normal family life.

Loss of Consortium in Wrongful Death Cases

In wrongful death cases, where the injured person dies as a result of their injury, the surviving spouse or family members can file a loss of consortium claim for the loss of love, care, support, and companionship of the deceased. This type of claim may also be filed in cases where the injured person has suffered a catastrophic injury that significantly alters their ability to interact with their family.

Why You Need a Katy Personal Injury Lawyer for Loss of Consortium Claims

Loss of consortium claims are complicated, as they require proving how an injury has affected relationships, which is inherently emotional and subjective. A personal injury lawyer can help:

Scott Callahan is board-certified in personal injury law, having seen thousands of these types of claims in his 25 plus years of practice. Give the firm a call today at 713-888-9000 if you believe your injury is affecting your valued relationships.

A contingency fee is frequently used by many personal injury law firms, but what is it exactly? Do you really not pay anything out-of-pocket? What happens if you do not win your case? Read on for answers to these questions and more.

How Are Lawyers Paid for Their Services? Hourly, Flat Fee, and Contingency Explained:

There are different ways lawyers can be paid for their services. The first way is to pay an hourly rate and the client will be charged the total amount of time worked on a case. This type of fee agreement is often used by larger law firms. The lawyers and various support staff, like paralegals, bill for their hours worked on a case.

Lawyers can also work on a fixed fee. This is when the attorney charges a flat rate for specific legal services they will perform for you. This type of arrangement is common for estate planning attorneys who may be setting up a will or offering a package of estate planning services.

A contingency fee is structured differently from hourly or fixed fees. Clients do not pay any money upfront or out-of-pocket to the attorney. Instead, the lawyer only gets paid if there is a settlement, judgment, or verdict. When the case is completed and your attorney has successfully secured a recovery, they receive a percentage of that recovery as their attorney’s fees. However, if no recovery is made, then you do not owe anything to the law firm. So, the lawyer only gets paid if he or she gets you compensation.

The percentage of recovery paid to the lawyer can vary anywhere from 33% to 45%. The percentage and an explanation of the contingency fee must be clearly outlined in the agreement you receive at the outset of your case.

How Are Expenses in My Case Paid?

Throughout the course of your case, there will be various expenses incurred. Examples of expenses include:

In a contingency fee agreement, the attorney will front the expense money necessary to pursue the case. The client does not pay any expenses out-of-pocket. The agreement will disclose  that these expenses paid for by the lawyer will be reimbursed to their firm when there is a recovery for the client (via settlement, judgment, or verdict). However, it is important to note that these case expenses are typically not owed to the law firm by the client in the event there is no successful recovery.

What Are the Advantages of a Contingency Fee Agreement?

The advantages of a contingency fee agreement are numerous. The first, and most obvious, advantage is that a client does not have to pay any fees upfront to hire their attorney. This takes financial stress off the client so they can focus on getting better and recovering from their injury.

Because a lawyer will not make any money if they do not win the case, it gives them a large incentive to do everything they can to secure the maximum amount of money possible for you. This can also make them selective in which cases they will accept. If your lawyer takes on your case, they likely think you have a reasonable chance at winning a recovery.

The last advantage is that if you do not win your case, then you do not owe any money to your attorney – either for fees or case expenses. It is important, however, to be sure to review your specific fee agreement, make sure it specifies these terms, and discuss it with your attorney at the beginning of your case so there are no surprises in the end.

Should I Hire a Lawyer on a Contingency Fee Basis?

Here at Scott Callahan & Associates, this is the only fee structure we offer and believe strongly in the advantages and flexibility it gives our clients. If you have been injured, give us a call today. Our Katy personal injury lawyers are here 24/7 to review your claim and answer all your questions.

A Renewed Look at the Evidence in the Infamous Case

It has been nearly 30 years since the McDonald’s hot coffee lawsuit went to court, but interest in the case remains high. People around the world dismissed the lawsuit as “frivolous” and a prime example of runaway juries. A look at the facts of the case, however, tell a different story.

Despite what most people think, plaintiff Stella Liebeck, a 79-year-old grandmother, was not driving when the coffee spilled. She was a passenger in her grandson’s car. As the car was parked, she tried to hold the cup securely between her knees while removing the plastic lid. However, the drink tipped over, spilling scalding hot coffee all over her lap, according to the Texas Trial Lawyers Association.

Here is some of the evidence presented to the jury:

  1. McDonald’s Knowingly Sold Their Coffee at Scalding Hot Temperatures.

It was company specification to sell their coffee at temperatures of 180 to 190 degrees Fahrenheit.

  1. Liquid at These Temperatures Can Cause Third-Degree Burns in Seconds.

McDonald’s coffee, if spilled, causes full thickness burns (third-degree to the muscle/fatty tissue layer) in as little as two seconds.  According to the U.S. Consumer Product Safety Commission, an adult can suffer third-degree burns after being exposed to 150-degree water for two seconds.

  1. The Plaintiff Suffered Third-Degree Burns Across 16% of her Body.

Ms. Liebeck was hospitalized for eight days and had to undergo a variety of procedures including skin grafting and whirlpool treatment for debridement. She also suffered permanent scarring as a result of the burns, as well as disability for over two years.

  1. McDonald’s Knew About the Danger.

From 1982 to 1992, there were more than 700 reported claims to McDonald’s of people suffering severe injuries from their hot coffee, including burns to the genital area, perineum, inner thighs, and buttocks. It was not only adults that were injured, but also infants and children.

  1. McDonald’s Would Not Lower the Temperature

Despite knowing the risk of harm, McDonald’s testified – through its own witnesses – that it did not intend to turn down the heat and it did nothing to warn consumers about the dangers.

A quality-control manager testified that not only were consumers unaware of the risk, but that consumers would not anticipate such severe burns if coffee was spilled.

  1. McDonald’s Agreed That the Coffee Was “Not Fit for Consumption.”

At trial, the fast-food giant admitted that the drink was “not fit for consumption” as sold because of the scalding hot temperature and risk of injury to the consumer. The jury agreed, finding that the coffee was “unreasonably dangerous” and was sold in “breach of the implied warranty of fitness.”

  1. The Plaintiff Had Tried to Settle the Case for $20,000.

McDonald’s initially refused to settle the case. Eventually, a jury would award the plaintiff $200,000 in compensatory damages (reduced by 20% as she was found to be partially at fault for her injuries) and $2.7 million in punitive damages.

  1. A Judge Later Significantly Reduced the Punitive Damages.

Punitive damages were later reduced by a trial judge to $480,000; however, the parties agreed to a “post-verdict settlement.” The confidential agreement prevented further appeals, which could have taken years to resolve.

  1. McDonald’s Conduct Was Considered “Callous.”

The Court refused to grant McDonald’s request for a new trial.  The Judge found the chain’s conduct regarding the sale of scalding hot coffee and failure to warn customers about the risk of harm if spilled was callous. For ten years, McDonald’s had seen hundreds of reports of customers receiving third-degree burns after spilling coffee, but they did nothing. Injuries included burns to the “genital area, perineum, inner thighs, and buttocks.”

  1. The Plaintiff’s Burns Were Substantial.

According to Ms. Liebeck’s treating physician, the 79-year-old’s burns were some of the worst scald burns he had ever seen.

THE TRUTH ABOUT HEADLINE-MAKING LAWSUITS

News headlines often spin lawsuits as being frivolous or juries as runaway.  However, every case has its own facts and evidence serving as the basis for how a specific verdict or settlement is reached. The judge and jury are presented with all of the evidence, testimony, and law in a case. They are the fact-finders and decision-makers after weighing all of the evidence — evidence and facts that are often not known to the public or reported in news headlines.

The McDonald’s hot coffee case involved far more than what most people realize.  There are always two sides to a story and the McDonald’s jury heard both before reaching their verdict. And, ultimately, the case was instrumental in eventually changing how coffee is served, including improved lids, insulated sleeves, and safer temperatures for consumers.