Often personal injury claims in New Mexico present the possibility of bringing a loss of consortium claim. This is particularly so in cases of serious personal injury. A loss of consortium claim is brought on behalf of spouse or child of the injured person.
New Mexico law specifically allows for an award of damages for loss of consortium. New Mexico Uniform Jury Instruction 13-1810A provides for recovery by plaintiff's spouse or child for the "loss of the society, guidance, companionship and sexual relations resulting from the plaintiff's injuries." Essentially, the spouse or child is awarded damages for their own emotional stress and loss associated with the plaintiff's injuries.
In a wrongful death case, the losses can be devastating to a surviving child and spouse. Loss of consortium claims and damages awards can be very large in wrongful death lawsuits. In the case of the wrongful death of a loved one, there is no question that a loss of consortium claim should be included in the wrongful death lawsuit.
Fortunately, only a very small percentage of personal injury claims involve death. Most personal injury claims involve some level of damages for physical injury along with the pain and suffering that goes with those injuries. In most cases, loss of consortium claims arise from a disruption of the relationship between the plaintiff and his or her family as a result of the physical injuries. Often physical injures do cause significant pain and suffering which impacts the daily activities of the plaintiff, including familial activities of every sort. In cases of serious injuries, the plaintiff may also suffer emotional damages such as depression and acute anxiety related to the injuries. These too disrupt the relationship between the plaintiff and his or her family.
The loss of consortium claims has come to be most closely identified with a loss of sexual relations between the plaintiff and his or her spouse. This loss can be significant. Even with moderate soft tissue back injuries, physical activity including sexual relations can become very uncomfortable. There is no question that the disruption of sexual relations presents very real losses often with significant emotional consequences for the relationship.
That being said, the emotional costs of bringing the loss of consortium claim may outweigh any recovery. These costs should be weighed carefully before jumping into a loss of consortium claim.
A loss of consortium claims implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The discovery process on these matters can be burdensome, invasive and embarrassing. Discovery is very broad in a personal injury lawsuit. There are few topics that are off limits particularly when the issue is raised by the plaintiff. The defendant's attorneys will pry into every corner of the relationship between plaintiff and his or her spouse. It takes little imagination to figure out where the investigation will lead.
The question every plaintiff and his or her spouse must ask is whether the loss of consortium claim is worth the emotional stress of opening up these private matters. The answer may very well be yes, but it is important to weigh these considerations before moving forward with the claim.