The wife of a good friend of mine got into a really bad car crash where she broke her leg and got a concussion. The accident was not her fault; she was hit by a drunk driver who ran a red light. It has been almost two years, and she is still not back to normal. She walks with a limp, and she is forgetful and cranky with my friend and their children. My friend also told me he and his wife have only been intimate a handful of times since the cast was taken off her leg. He is at his wits end, and I do not know what to tell him or how to be supportive through all this. Do you have any advice?
— Alejandro C., Sunset
I’m so sorry your friend’s family is going through these horrible injuries, but it is wonderful that you are there for him and want to be as supportive as possible. First, your friend’s spouse, we can call her Jane, has a claim for her personal injuries. She can, within two years, make a claim for her medical bills and lost wages in addition to her pain and suffering against the driver who hit her.
Now your friend, we can call him John, has a claim for his loss of consortium against the driver who hurt his spouse. The California Civil Code allows John to make a claim, assuming 1) his marriage was valid and lawful at the time of Jane’s injuries, 2) his spouse suffered a tortious injury, 3) he suffered a loss of consortium, and 4) his loss was proximately caused by the tort defendant’s act.
John’s loss of consortium claim will be valued based on his loss of his spouse’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support; as well as the loss of the enjoyment of sexual relations and/or the ability to have children. (In this context “loss” can also mean a change to, or diminished amount of the attributes listed above.)
John’s claim would be for both the past loss of these elements in his relationship with his spouse, as well as what he is reasonably certain to suffer in the future. Because of the changes you have mentioned in their relationship, a loss of consortium claim appears reasonable for John to make.
In deciding to make this type of claim they would both have to evaluate the loss and make a joint decision if they want to discuss the changes in their relationship with attorneys and potentially a jury. It can be very private and sometimes, despite the validity of the claim, couples elect not to proceed with it.
Alternative forces that change the relationship and/or pre-existing issues, if any, would need to be openly discussed with counsel to make a more complete recommendation in proceeding with a loss of consortium claim before any litigation is commenced. It is also important to note, that despite the similarities of the companionship, care, comfort, society, etcetera in the relationship between parents and children, a loss of consortium claim is only available to married spouses. Jane and John’s children would not be able to make a claim for the changes in their relationship with their mother because of her injuries.
Now, separate and apart from the legal claims Jane and John may elect to bring, there are many additional resources you can help your friend locate. Throughout the state and nationally there are numerous support groups for both traumatic brain injury patients and their families.
First, your friend can check with his health insurance coverage. The insurance provider’s website may direct him to support groups, literature, or individualized help. John can also look to the county level, as most counties have resources for injured persons.
To demonstrate the breadth of options, San Francisco General Hospital as well as many private local hospitals run a Traumatic Brain Injury support group that meets weekly/monthly. The Brain Injury Association of California educates and provides many resources for survivors, caretakers, family, friends and others. As well, the National Alliance on Mental Illness has many resources for brain injury survivors and their families. Many of these resources are available now, despite the pandemic, through video conferencing.
Your friend should evaluate the options and figure out with his spouse which, if any, of these groups, organizations and resources may aid them, as this decision is an individual one to be made by your friend and his spouse based on their families’ needs.
As a friend it is wonderful you are there to support him, listen and help when he needs it. We are very sorry for the loss your friend’s family is enduring, and wish him the best in locating resources that will help his family forge their way forward.
Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Megan Irish is a Senior Associate Attorney based in our Oakland CA office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to: firstname.lastname@example.org. Each situation is different and this column does not constitute legal advice. We recommend that you consult with an experienced trial attorney to fully understand your rights.