- The spouses of people who have been injured by negligence may be eligible to file their own claims for loss of consortium, which we covered in an earlier post. These allegations potentially compensate for physical pain, mental and emotional they may experience as a result of injuries of their relatives.
But there are special considerations when injuries are caused by exposure to asbestos. Specifically, the timing of two asbestos exposure and diagnosis of a disease related to asbestos, and the date of the impact of marriage on the validity of a loss to claim the consortium.
For the loss of the claims of the consortium in general, the couple must be married at the time of the injury. A California case 02 Zwicker v. Altamont Emergency Room Physicians Medical Group , provides an example of how this legal requirement works.
Marriage at the time of the accident required for the loss of the Consortium
in March 09, a California man went to the emergency room complaining of pain in the scrotum. After examining it, the doctors told him that all was well and that he could follow with his own doctor.
The next day, the man's pain increased and he went to another hospital. This time, it was said that he had probably suffered damage to his spermatic cord. During emergency surgery, urologist found that the cord was damaged and removed the testicle.
Over the next 11 months, three tests indicated that the man was sterile. Shortly after the last test, he married. A few weeks later, he filed a lawsuit for medical malpractice against the first hospitals and emergency rooms of doctors for failing to diagnose and treat it.
The man's girlfriend also filed a loss claim alleging that the consortium, due to misdiagnosis negligent emergency room, her husband could not fertilize. The defendants argued that the woman could not claim loss of consortium because she knew about her husband's fertility issues before marriage. She said her pent-up demand after their marriage, when she discovered that infertility of her husband was permanent.
A California Court of Appeal disagreed with the accused and found that it does not matter where the applicant has discovered that her husband was infertile. However, the court still held that the woman has not had a loss of validity of consortium claim.
The Court found that the loss of consortium involves the 'loss of rights and privileges. . . in the marital relationship. "
Because the law is based on the marital relationship, there is not no wedding. Here the request of the woman was invalid because it had" no right "to a consortium at the time of the injury.
in other words, she could not claim loss of consortium because she was not married to her husband at the time it was injured. in this case, the injury occurred at the time of the alleged misdiagnosis.
different approach to Latent diseases
Although Zwicker not included no injuries related to asbestos, asbestos litigation defendants relied on it while defending against claims of loss of consortium. They argue that in Zwicker , loss of consortium claims are available for asbestos claimants who were married to the injured party at the time of the wrongdoing.
Application Zwicker in this manner is troublesome for claimants in asbestos cases because of the long latency period for asbestos-related diseases. In practice, matching the injury time when the wrongdoing means that most of the losses of the claims of asbestos consortium would fail.
For example, it could mean that the woman whose husband was diagnosed with mesothelioma in their 30 e anniversary would be unable to make a loss of consortium claim if was exposed to asbestos 35 years ago, before their marriage.
Fortunately, two in California during revisited call Zwicker last summer and made an important distinction for asbestos cases :.
- In Leonard v Crane , John and Sandra Leonard brought asbestos injuries and loss of consortium claims against John Crane, Inc. John Leonard was exposed to asbestos between 1958 and 1995. he married Sandra in 01. in 2010, he was diagnosed with mesothelioma.
- in Vanhooser v. Superior Court , and Frederick Sherrell Vanhooser filed asbestos injury and loss of consortium claims against Henessey Industries, Inc. Frederick was exposed to asbestos while serving in the US Navy during the 1960s and 1970s and also while working as an auto mechanic from 1988 to 190. He married Sherrell in 1991 or 1992. He developed symptoms of mesothelioma in 2010 and was diagnosed the following year.
the Vanhoosers may have had their claims loss of consortium thrown if the courts had determined that the wounds of their husbands had occurred on the date of the offense. The two women married their husbands after being exposed to asbestos. Following the reasoning of Zwicker , the courts have determined that neither woman had a consortium of law because there was no marriage at the time of the accident.
However, courts Leonard and Vanhooser estimated that injuries involving latent diseases must be treated differently. Zwicker involved a so-called "instant" tort where the damage and the misconduct occurred "almost simultaneously."
For latent diseases like mesothelioma, the injury does not occur until the symptoms are discovered or the disease is diagnosed. Since Sandra Leonard and Sherrell Vanhooser were married to their husbands before onset of symptoms or diagnosis, the courts have concluded that the loss of the rights of the consortium were valid.
It is important to remember that each state has different laws regarding the loss of the claims of the consortium. The other States courts are not necessarily required to implement the decisions of the California courts.
In addition, the facts of an individual case ultimately affect the outcome. That's why it's always wise to talk to a qualified mesothelioma lawyer about your particular case.
