Public Health Law Map - Beta 5 - Medical and Public Health Law Site

cases do not give rise to injury-related claims for emotional distress. It is an issue
in cases that involve intentional actions, such as refusing treatment, or engaging in
outrageous activities, such as sexually assaulting a patient.
b) Consortium
Consortium is a relatively new damage element that arose from the acceptance that
the services performed by a homemaker have economic value. It has evolved to
cover either spouse, and in some states it can include claims by children.
Consortium is the economic value of the services that the injured person would
have provided to the family but for the injury: cooking, cleaning, shopping, helping
with school work, fixing the roof, and other domestic services that could
conceivably be purchased from a third party. Consortium also includes elements
that are unique to the injured individual: advice and counseling, companionship,
and sexual services. These not readily reducible to a monetary value but are
compensable in the same way as pain and emotional distress.
Consortium claims are important in cases in which there is no significant wage loss
or when loss of sexual services includes the loss of reproductive potential. If the
couple has not completed their family and the accident makes procreation
impossible or improbable, they are entitled to compensation. They are not required
to mitigate their damages through fertility technologies, and the courts do not
regard adoption as a substitute for personally bearing children.
3. Punitive Damages
The primary role of the tort system is to compensate injured persons. A secondary
role is the deterrence of socially unacceptable behavior. Making defendants pay for
the harm they cause does have a deterrent effect, but in some situations the
outrageous nature of a defendant’s actions is out of proportion to the cost of
compensating the plaintiff. In these cases, the jury is allowed to award punitive (also
called exemplary) damages to punish the defendant:
It is a well-established principle of the common law, that … a jury may
inflict what are called exemplary, punitive or vindictive damages upon a
defendant, having in view the enormity of his offense rather than the measure
of compensation to the plaintiff. … By the common as well as by statute law,
men are often punished for aggravated misconduct or lawless acts, by means
of civil action, and the damages, inflicted by way of penalty or punishment,
given to the party injured. [Day v. Woodworth, 54 U.S. (13 How) 363, 371
(1851).]
Punitive damages may not be awarded for merely negligent behavior. The conduct
must be intentionally harmful or grossly negligent:
The penal aspect and public policy considerations which justify the
imposition of punitive damages require that they be imposed only after a
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