LNCtips.com: Loss of Consortium
In medical malpractice cases, loss of consortium is a claim brought by the spouse or domestic partner of a person who was injured or killed due to alleged medical malpractice. Consortium refers to the rights of a marriage or legal domestic partnership. Loss of consortium can include economic damages as well as intangibles such as love, companionship, sexual intercourse, and affection. Legal nurse consultants contribute to the decision by the client and attorney to file a loss of consortium claim. However, the role of LNCs differs drastically depending on whether they work for the plaintiff or the defense.
When working for the plaintiff, the LNC's role is to provide information to the attorney about the clients' relationship. Was the marriage strong? (I'm going to refer to the relationship as a marriage from now on; the same information applies to legally recognized domestic partnerships in some states.) Were there any separations? Was there a history of domestic violence? Were there any criminal charges of abuse? Are there references in the medical records to unfaithfulness by either spouse? An interview with the client(s) and a thorough background check are critical to help the attorney gain an understanding of the spouses' relationship.
In addition to checking for the stability of the marriage, it's important to provide information to the clients about the intrusiveness that accompanies this type of claim. What affect did the injuries have on activities in the home and the relationship? The LNC and attorney will need to ask the same questions that the defense will eventually ask. For example, expect the defense to ask questions about sexual history, including sexually transmitted diseases, premarital and extramarital affairs, birth control practices, and sexual practices. It's also important to evaluate the demeanor of the spouses. Spouses who appear self-centered, whiny, or greedy are not good candidates for a claim of loss of consortium.
The defense strategy will be to try to discredit the spouse. The defense attorney may ask the LNC to write interrogatories or deposition questions related to the loss of consortium. One of the biggest contributions that the legal nurse consultant can make to the defense of the case is to review medical records and compare the information in them to the spouse's testimony in the deposition transcript. For example, let's say that the wife of the deceased patient testifies that the loss of her spouse devastated her. Further, she testifies that she has had no sexual relations since his death. The spouse's testimony allows the defense to subpoena her medical records. The legal nurse consultant should review the spouse's records for evidence of sexual activity, such as use of birth control. Records related to psychological counseling may reveal details of the marriage and the wife's reaction to the loss. If there are discrepancies between the spouse's testimony and the medical records, the defense attorney may hire a private investigator to observe the wife's activities and relationships.
Because of the intimate nature of testimony in these types of cases, loss of consortium claims are usually reserved for devastating injuries and death. Whether working for the plaintiff or the defense, legal nurse consultants can assist attorneys with this type of claim....Katy Jones