Who Should Recover for Loss of Consortium?

For more than three centuries courts have recognized a husband's right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of "spousal" consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably unfair to recognize impairment of consortium as a compensable injury, but to treat it as an injury for which only the husband could recover. The same criticisms which led to the recognition of the wife's action now are being advanced in support of the argument that the child also must be allowed to recover damages for loss of "parental" consortium where a tortfeasor has negligently injured one or both of the child's parents. In a small but growing number of cases, the argument again has proven successful. Consideration of the question whether the child should be allowed to recover for loss of consortium—a question courts in Maine and other jurisdictions inevitably will face with increasing frequency—should provide an opportunity for re-examination of consortium recovery. If the courts take a narrow approach to this issue, however, and answer only the isolated question whether the child should be allowed to recover, little real progress toward a fair and consistent approach to consortium will be made, and more fundamental aspects of consortium recovery will remain unexamined and unchanged. The courts should instead consider the question in the context of a broader and more fundamental analysis.