If my husband arrived on the scene after my son was hit by a car while riding his bike, and, as a result of my husbands emotional distress, he is unable to have intimate relations with me, can I sue for loss of consortium?
You would probably not be successful with your claim, and here’s why. Your claim would arise out of your husband’s claim for emotional distress as a bystander who witnessed your son’s accident. In other words, before offering proof for your claim, your husband must prove that he has a valid claim for emotional distress himself. Without him suffering from emotional distress, there would be, (theoretically), no problem with your relations. Therefore, without his claim, yours, in essence, does not exist under the law. The law in this area is complicated, but basically your husband needs to prove that he was a witness to the accident itself, or, in some states, that he at least heard the accident and knew that it was your son who was involved in it at the time the event occurred. Arriving on the scene subsequent to the accident would not be sufficient to prove his claim for emotional distress.
Even if he were to have witnessed or heard the accident, then he would need to prove that he is suffering from severe emotional distress. To do so, he would need to provide medical bills and physicians’ reports showing that he was treated for his emotional pain, and he would likely be asked to provide medical records which would indicate whether or not he had any history of emotional or mental illness. The other party’s attorney may even ask him to go for an independent medical examination with a psychiatrist or psychologist of their choosing. Now, if you can get over those rather large hurdles, then you can try to prove your claim for loss of consortium. Your husband may make this claim, as well.
Loss of consortium means an inability to have normal sexual relations with your spouse as a result of injury. Here, it would be due to his emotional distress. Beyond just sexual intercourse, a loss of consortium claim may also include the loss of care, affection and companionship between the members of a married couple, either with or without a decrease in sexual intimacy. It may also include the hardship you are enduring because he can no longer help care for the kids and the house. Please note that such claims are usually viewed as speculative and are very difficult to put a dollar amount on if the judge or jury is inclined to award anything at all. The court would have to be adequately impressed by how seriously deprived your life is. Should your claim get this far, please note that you will open yourself up to questions regarding your sex life with your husband by the responsible party’s attorney in a deposition (questioning under oath) and/or at a trial, so you may not want to make this claim unless your loss is severe. As you can see, in this particular set of circumstances, the outlook is not very good for you to be successful with your claim.