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Medical Malpractice case tackles loss of parental consortium

Silhouette of mother dancing with childAttorneys who handle personal injury cases such as car accidents, truck accidents, or nursing home negligence cases are often asked, “How much is my case worth?” Unfortunately, there is not an easy answer to that question, since the amount of damages that may be available in a given case depends upon several factors.

Typically, some possible elements of damages include past medical expenses, future medical care and rehabilitation, past lost wages, loss of future earning capacity, and pain and suffering.

In some situations, loss of consortium damages may also be available. “Loss of consortium” refers to the loss of the benefits of a family relationship, such as that between a parent and child or husband and wife. In the case of spousal consortium, Kentucky law says the claim is for the right to the services, assistance, aid, society, companionship, and conjugal relationship between spouses. See the post on Kentucky Court Report covering the case of Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually v. Ohio County Hospital Corporation, as an example.

Allegations in the Plaintiff’s Complaint

In the recent case of Diaz v. Gutti, an appellate court discussed the issue of whether loss of consortium damages were available to a child whose mother was injured by, but did not die as a result of, an alleged act of medical malpractice. The plaintiff in the case was a minor child who, through his legal guardian, brought a medical malpractice lawsuit against the defendant doctor in the Pike County Circuit Court in Kentucky. In the suit, the attorney for the child sought compensation on behalf of the child on the loss of consortium of his mother, alleging that the doctor’s medical negligence had severely injured his mother and rendered her incapable of caring for him.

The Trial Court’s Ruling

The doctor filed a motion to dismiss the child’s loss of consortium claim pursuant to Kentucky Rules of Civil Procedure 12.02, arguing that Kentucky law does not recognize a child’s loss of consortium claim unless a wrongful death claim exists. The trial court agreed and granted the doctor’s motion.

The Appellate Court’s Decision

On appeal to the Kentucky Court of Appeals, the court affirmed, citing the cases of Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005) and Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky. App. 1992). The court ruled that in Kentucky, a loss of consortium claim pertaining to the parent/child or child/parent relationship may only be brought in a wrongful death action, even when there is proof of serious and permanent injury to an accident victim.

What Happens Next

It is possible that the guardian of the child will seek further review from the Kentucky Supreme Court, which would have the final say should it grant discretionary review of this evolving issue of law. Some scholars have encouraged the state’s high court to expand parental consortium damages to cases such as Diaz, but it is unclear as to if or when this may happen. In the meantime, loss of parent consortium damages are only possible when a parent dies, regardless of the severity of his or her injuries or how they affect the parent’s relationship with the child.

Speak to an Attorney about Your Injury Case

If you believe that you or a family member has been injured by the negligence of a doctor or nursing home and wish to speak to an attorney experienced in injury litigation, call the experienced Kentucky wrongful death and injury attorneys at English, Lucas, Priest & Owsley at (270)781-6500 and ask for an appointment. We represented injured people throughout Kentucky.

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