Talking about the tough topic of divorce, consortium claims for spouses, and why brain injury cases are called “wrongful death” cases where the victim survives
Traumatic brain injury (TBI) imposes a tremendous cost on society. But apart from the economic costs, there are human costs of brain injury that are often overlooked. Marriages often fall victim as well – something that many lawyers who represent the victims of TBI in motor vehicle accidents will overlook.
It’s not easy to calculate a dollar amount on the intimacy and closeness of a marriage. Consortium claims for spouses are often very low because attorneys fail to show juries and insurance companies the real toll of traumatic brain injury on a marriage. In one case of mine, Broeren v. Bates, that involved serious brain and knee injuries to a man who was hit and run over by a car (and that made the front cover of Michigan Lawyers Weekly), it was the $1 million for consortium for his wife, out of the $5.6 million verdict, that made the case so notable.
An article on brainline.org, “The Truth About Divorce After Traumatic Brain Injury,” sheds light on the serious problems that can ensue, and can help both accident victims and their attorneys better understand how an injury to a husband or wife can also result in injury to the spouse.
According to the article, traumatic brain injury could actually be a predictor of divorce, though studies yield mixed results:
“A review of studies published after 1980 shows alarmingly high post-injury divorce rates ranging from 48% to 78% (after brain injury).”
In 2008, VCU (Virginia Commonwealth University TBI Model Systems researchers) investigators led a research team which investigated marital stability after brain injury in the largest on marriage-after-brain injury study to date. This study included 977 people from different ethnic and cultural backgrounds and found “85% of survivors remained married for at least two years post injury.”
Consider some of these factors that could strain a marriage when one spouse has traumatic brain injury from a serious motor vehicle accident:
- Spouses often take on many of the injured person’s responsibilities, though they may have little experience with their new responsibilities.
- Unemployment rates after brain injury are relatively high and many insurance companies don’t cover the costs of therapy, adding to financial stresses.
- Brain injury often brings on drastic personality changes, which may include irritability, depression, limited awareness of injury-related changes, and argumentativeness.
- Some spouses, like in my Broeren case, have reported, “I’m married, but I feel like I have no husband” and/or “I’m married to a stranger.”
Here’s another article from brainline.org on “Healing Your Marriage After Traumatic Brain Injury.”
Better understanding consortium claims under Michigan law
I’ve practiced as an auto accident attorney with a focus on brain injury for more than 20 years, and I’m sadly familiar with the devastating life changes TBI after a car accident can bring. And as an Executive Board Member and incoming chair-elect of the American Association for Justice Traumatic Brain Injury Litigation Group, I also speak around the country in efforts to help other personal injury lawyers better understand and litigate these complicated cases.
There is no area more misunderstood or ignored by lawyers than consortium claims for the spouse after a serious personal injury has occurred.
A “loss of consortium” is the “injury” that an accident victim and his or her spouse suffer when the victim’s accident-related injuries prevent the couple from maintaining their normal relationship.
Under Michigan law, a claim for loss of consortium is not just a claim for damages. It’s an independent cause of action that can be brought not only by the Michigan auto accident victim, but also by his or her spouse — even though the spouse was not directly injured in the accident.
To prove a consortium claim, the court will consider the “value” of the loss by considering several factors including:
- The stability of the marriage,
- Individual life expectancy, and
- The extent to which the benefits of married life were actually lost. For instance, a spouse who’s in a coma after a car accident accident will likely be seen as losing a greater amount of marital benefits than one who sustained a broken arm.
How many people are affected by traumatic brain injury?
Today marks the first day National Brain Injury Awareness Month by the Brain Injury Association of America. According to the Brain Injury Association of America:
- At least 2.5 million children and adults sustain TBIs in the U.S. each year
- Every 13 seconds, someone in the U.S. sustains a TBI.
- One of every 60 people in the U.S. lives with a TBI-related disability.
- Every day, 137 people in the U.S. die because of a TBI-related injury.
- At least 5.3 million Americans live with TBI-related disabilities.
Here are some Michigan resources for people with brain injuries and their families at the Brain Injury Association of Michigan Resource page.