Loss of Consortium Includes the Entire Family’s Ability to Function

We think of Loss of Consortium to mean an the loss suffered by an injured party’s spouse because they no longer enjoy the sex life they had prior to the injury, but that is not the whole picture. 

The interpretation has changed in modern life.

What is loss of consortium?

“Deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor.  The spouse of someone injured or killed in an accident can sue for damages based on loss of consortium.”

Legal Information Institute, Cornell Law School

Family Unit – Managing Family Life

The entire family may be impacted by the injury of even one family member.  It helps to understand that “consortium” applies to the way a family is functioning or malfunctioning.

Loss of consortium is a legal term that describes “consorting” as the interactions among family members including the daily household routine.  Caring for children, household chores, even getting the kids to soccer games may fall to the wayside after an injury.

Describing and quantifying the emotional and life disruptions to a family is tricky, but doable, with the input of an appropriately qualified expert witness.

Multiple Injured Parties

A car accident, or any accident, that impacts more than one family member changes the equation exponentially. The death of one or more family members is all the more devastating.  Families may never recover, or require extended treatment to restore even a portion of their former relationships. 

Loss of Consortium and Torts

Learning What the Expert Knows

Loss of consortium is, by definition and law, one possible outcome of a tortious act. Should liability be proven, a jury will need to understand the findings of an expert witness knowledgeable about evaluating family dynamics and emotional recovery. An articulate and deeply qualified expert witness is needed.

The trial attorney, however, must learn first what the Marriage and Family expert finds on forensic inquiry.

The Right Expert Witness in a loss of consortium claim is highly qualified in treating families whose engagement with one another is impaired. Psychiatrists and psychologists are not all equally trained in the family’s ability to weather trauma.

An MFT is trained and qualified specifically in the area of family functioning.   

In Dr. Jordal’s case, he is a highly respected Educator and leader in the field of Marriage and Family Therapy. He is a Certified Sex Therapist qualified to address impact of injury on sex and sexuality.  Loss of consortium in nontraditional families is uncharted territory in the Courts and also worthy of a closer look by attorneys (domestic partners, gay couples.)

Dr. Jordal’s active clinical practice addresses the relationships of diverse families, straight, gay, married, or domestic partners. 

At Drexel University, Dr. Jordal is interim Chair of the Department of Marriage and Family Therapy, teaching new generations of Marriage and Family Therapists as a teacher (Associate Professor) and Mentor. His skill explaining and educating about family function and dysfunction is well-established.  

Dr. Jordal is sought for his expertise because of his extensive qualifications and experience in the very factors that must be assessed in a case where loss of consortium is claimed. 

Why An MFT? Isn’t a Psychiatrist or Psychologist the Better Credentialed Professional?

A Psychiatrist is a physician first, receiving medical training that may involve little or no experience with the group dynamics in a family or couple.  A Psychologist receives training in psychology research or treating psychological disorders.  Most psychologists focus on treatment and with a selected population such as children, adolescents or adults. Frankly, therapy for individuals is a common path of a psychologist’s clinical practice.  Only a Licensed Marriage and Family Therapist receives training and education focused definitely on couples and families.

We address this as a separate legal issue for a few reasons.  Certainly loss of consortium includes the lack of a formerly satisfying sex life prior to an event that is going to court, including personal injury and family law.

Further, loss of a satisfying sex life can be secondary to other forms of emotional distress.

Regardless of whether you represent plaintiff or defense, the bottom line is that if someone claims damages for sexual dysfunction, not all experts are equally qualified to address the issue.

Assessing depression and evaluating treatment is important as a matter of emotional distress damages but it can also be relevant to a loss of consortium claim.

Depression

If depression is a feature of the emotional distress claim it is relevant to know that it can cause loss of interest in sex. Some treatment medications can cause loss of libido, interest in sex, enthusiasm for sex and impotence in men. This is a prognostic issue as well as diagnostic.

After an accident or, frankly, any event that gives rise to a lawsuit, people may become depressed. Causation is not for the Expert Witness to address, but understanding how depression operates and its impact on sexuality and sexual relationships can be made clearer to a jury with the right testimony.

To be Made Whole

In law, damages raise the question “what is necessary for an indvidual (or family) to be made whole” or restore them to the life they had before an accident or event–or any tortfeasor.  A victim of fraud can become depressed or anxious leading to the impact described above. For the defense, when a plaintiff claims their sex life is diminished as a result of events, it is difficult to evaluate.  People may not want to speak about their deepest and most intimate concerns, let alone in court.  Dr. Jordal draws on his experience as a trusted therapist working extensively with couples dealing with sexual issues, sexuality and changes to their intimate life as well as investigating alternatives that may mitigate the damages–i.e., pursue recovery.

Who’s in control? Workplace sexual harassment allegations can be complicated.

It isn’t always obvious if one person’s actions have stepped on another person’s liberty.

To understand sexual harassment, it’s important to address the relationship between personality, sex, power, gender assumptions, and/or misinterpretation of signals.

“Signals” are communication, verbal and non-verbal. Communication, however, requires a shared language and respect for the other person’s response.  If two people, or three or four, all interpret a signal differently, you must consider malicious intent as well as the assumptions we all bring to interpretation of another’s behavior. This is Dr. Jordal’s area of expertise.

A sexual overture can run the gamut from assault to a healthy relationship. That leaves a lot of gray area where an attorney must find footing to build a strong case for their client.

A sexual interaction raises questions an attorney can better understand by consulting with Dr. Jordal, whose experience, training and credentials qualify him to address these litigated questions.

Consent – Consensual – Non-Consensual

On its face, consent seems like a simple yes or no.  However, a person whose life experiences have confused their sense of what it means to say yes or no, or their fear of imagined consequences changes their perception, it adds a level of complexity to the adjudicated matter. The same can be applied to an alleged perpetrator.

Male Rape

Questions of consent apply to both men and women inasmuch as men are also victims of rape and assault but may interpret or describe their experiences differently. They may also express their consent or lack of it differently than women. Unlike, a woman, a heterosexual man may fear an overture by another man as challenging his sexuality, introducing unique concerns in assessing consent, rape, assault or sexual harassment.

Malpractice: Crossing the Line

Marriage and Family Therapists must meet the thresshold for licensing, training and ethical behavior.  Unfortunately, practitioners may breach their duty to their clients in a manner that requires litigation to resolve.

Egregious behavior, such as initiating a sexual relationship between therapist and client (also known as “boundary-crossing”) can have severe emotional consequences for either party. We tend to consider first the client/patient (in the case of a psychiatrist, the medical patient/treater relationship exists).

The behavior of the therapist must be understood in order to evaluate the entirety of the events. A jury, or parties negotiating settlement, will want to better understand how things unfolded to better assess damages should they be awarded. Malicious intent, for example, is different from a consensual relationship that occurs after the therapeutic relationship ends. Both raise serious ethical concerns and may constitute malpractice. Punitive damages, however, may not be awarded equally.

Dr. Jordal is an appointed Commissioner on the Pennsylvania State Board of Social Workers, Marriage and Family Therapists, and Professional Counselors, and Commission on Accreditation for Marriage and Family Therapy Education. He is expert in standards of care for marriage and family therapists and counselors with special experience in the licensing and accreditation standards in Pennsylvania.