Law Life: Do loss-of-consortium damages include cost of caretaker services?

By Pat Murphy The Daily Record Newswire Here's one for personal injury lawyers. Suppose a disabled man's wife is injured in an accident and can no longer assist him in his daily care. Can he recover the cost of professional caretaker services when suing for loss of consortium? Plaintiffs' attorneys shouldn't be too confident of the answer. Recently, the 8th Circuit answered the question with a definitive "no," striking a $1 million award to a quadriplegic Missouri man. The unfortunate plaintiff is Calvin Kingman, who has been a quadriplegic since a 1982 car wreck. Until recently, Calvin's wife, Paula, has been his primary caregiver, assisting with bathing, dressing, feeding and going to the bathroom. Moreover, Paula has had the important task of hoisting and turning the 300-pound Calvin to prevent pressure ulcers from developing. Then there was the job of stretching Calvin to avoid the contracture of his joints. Paula's ability to care for Calvin has become severely limited due to a shoulder injury suffered when a clothing rack fell on her while she was shopping at a Dillard's department store in 2004. Paula sued Dillard's in federal court for negligence and was awarded $256,000 for her medical bills and the loss of use of her shoulder. The trial judge was even more generous regarding Calvin's accompanying loss-of-consortium claim, awarding $1 million to cover the cost of professional caregiver services for 15 years. At the end of 15 years, Paula would be 62 and presumably unable to care for Calvin without professional services, regardless of her injury. But Calvin will never see the $1 million because the 8th Circuit concluded that applicable Missouri law does not permit the recovery of the cost of professional caretaker services when suing for loss of consortium. In reaching this conclusion, the court first observed that no Missouri court has ever allowed a spouse to recover life-long professional nursing care on a consortium claim. Lawyers outside of Missouri should note, too, that the court's research was unable to reveal any precedent from other parts of the country to support such an award. Examining state law on the subject, the court concluded "that professional nursing care is not included in the ordinary services that Missouri expects a wife to provide to her husband. Therefore, Missouri precedents do not foreshadow the extension of the law of consortium to encompass recovery for the loss of such services." Apart from the absence of precedent, the 8th Circuit was plainly troubled by the ratio of Calvin's damages for loss of consortium to the damages awarded Paula in her underlying negligence action. On this point, the court observed that "the Supreme Court of Missouri has suggested that the extent of the uninjured spouse's recovery for loss of consortium 'depends, in large measure,' upon the extent of the injured spouse's injuries." Under this standard, Calvin's $1 million dollar award could not stand. The 8th Circuit said that "we think it unlikely that, absent legislative action, the Supreme Court of Missouri would expand the concept of consortium to include a claim for lifetime professional nursing services that vastly exceeds the underlying award to the injured spouse. Consequently, it is not our role to do so." (Kingman v. Dillard's) But the court did offer Calvin some hope for when the trial judge reconsiders the amount the husband may receive on his consortium claim. Setting some guideposts on remand, the court observed that "an invalid spouse might be entitled to a greater recovery than a healthy spouse if his injured wife had previously been undertaking a greater share of the household services that are encompassed by the notion of consortium. ... "Therefore, we predict that the Supreme Court of Missouri would permit a higher consortium award when, as here, the uninjured spouse is an invalid. Still, there 'should be some reasonable relationship between the size of a verdict awarded in a consortium action and that given the injured spouse." Published: Wed, Jul 20, 2011