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Loss of Consortium from Wrongful Death

The following is an excerpt from an interview with a Virginia wrongful death attorney.

What is psychological harm and are damages for this recoverable?

Psychological harm is an umbrella term for any mental health issues that result from an injury, such as anxiety, Post Traumatic Stress Disorder, or depression. Psychological harm doesn’t necessarily have to occur right at the time of the accident or negligent act in order to be compensable as damages. Sometimes people suffer severe injury and their mobility is limited permanently. As a result, they might develop depression. That could be part of the psychological harm that can be pursued as part of a personal injury case. Some of the more straightforward presentations would be Posttraumatic Stress Disorder after a violent attack, or someone having anxiety whenever they drive after a life-threatening automobile accident. For example, if someone was in a bad accident with a commercial vehicle, they might get extremely anxious every time they are on a highway and they go past a semi-truck. If those things are properly documented in their medical records, that can be included in a personal injury claim. Psychological damages are just as real as any other damages and if they are properly documented, they can usually be included in the claim.

What is a loss of consortium claim?

A loss of consortium claim refers to the harm to a marital relationship as a result of someone’s injuries. It has changed over the years. In some jurisdictions, loss of consortium used to mean that someone could recover for the loss of their sexual relationship with their spouse, but it also goes beyond that. It could also include things like sharing duties. It is extremely state-specific. The basic idea is harm to the marital relationship, but there are different ways in which it can manifest itself. Loss of consortium may not be recognized in every jurisdiction. In Virginia, a spouse cannot bring an independent claim for loss of consortium. However, in a wrongful death action in Virginia, for instance, a spouse may recover for sorrow, mental anguish, and solace, which can include society, companionship, comfort, guidance, kindly offices and advice of the decedent. While the legal terminology and the exact type of compensation may differ, even in jurisdictions that do not allow recovery for loss of consortium, there may still be other types of recovery available to a spouse.

Are the rights of minors different when filing of an injury claim?

Yes. Minors can be compensated for damages, but they have to bring a suit by their legal representative, which would be either a parent or guardian or their next of kin. Minors do not have the legal capacity to enter into contracts, or to sue and be sued. It depends on the state and jurisdiction, but just because someone is a minor does not mean they cannot be compensated for their damages. They do not have standing to sue individually until they are emancipated, which typically means reaching the age of 18, but someone can bring the action on their behalf. The law in some jurisdictions provides that only the parents of a minor may recover for their medical bills, so it is important to contact an attorney if your minor child has been injured.

One interesting factor involving minors is that, depending on the jurisdiction, some minors below a certain age are legally incapable of being determined to be negligent (or contributorily negligent). For example, if a three-year-old stumbles upon something that an adult would know is dangerous but the child doesn’t and by their own action they engage in behavior that causes them to be injured, they are not necessarily barred by contributory negligence. In most jurisdictions, a three-year-old is considered legally incapable of being contributory negligent.

What does permanency mean in the context of personal injury?

Permanency refers to the idea that someone’s injuries are permanent. In a personal injury case, permanency plays a little bit different of a role than in other cases, such as a workers’ compensation case. If someone’s injuries are permanent, that is going to impact them down the road, which leads to greater harms and losses suffered, and greater future medical bills. All sorts of things that can be impacted by permanent injuries. If someone’s range of motion is permanently limited, that might affect their ability to work, and they can receive compensation for that. In Workers’ Compensation cases, a permanent injury will often result in an award of a specific amount of compensation, which may be based upon the injured worker’s average weekly wage. This all will vary from jurisdiction to jurisdiction. With certain types of injuries, once they occur, that person is never going to be the same, and that is most often where permanency comes into play.