Damages For Loss of a Spouse; Surviving Spouse May Recover Damages for Lost Companionship and Consortium Rules Kentucky Supreme Court

Kentucky law had long included an anomalous concept that denied damages to a surviving spouse for the lost companionship and consortium of their deceased spouse, although such damages could be recovered where the spouse was injured and, as a result, their companionship for all practical purposes was lost. "Common sense must not be a stranger in the house of the law" wrote Justice Mary Noble for a unanimous Kentucky Supreme Court in this case at last ruling that a surviving spouse may recover damages for lost companionship when their spouse is killed by the negligence or wrongdoing of another. 

Kentucky Supreme Court

Rendered October 1, 2009; Case No. 2008-SC-211-DG





The Appellants in this action, Tina Martin, Administratrix of the Estate of
Billie Carol Shreve, Deceased, and Donald Ray Shreve, Individually, were
granted discretionary review of the Court of Appeals' reversal of the trial court's
judgment. Two issues are raised: Whether a surviving spouse is entitled to
loss of consortium damages beyond the death of the injured spouse for the
unlawful acts of a third party; and whether the Appellee, Ohio County Hospital
Corporation, was entitled to a directed verdict on a claim under the Emergency
Medical Treatment and Active Labor Act, 42 U.S .C. § 1395dd. This Court
reverses the decision of the Court of Appeals.

I. Background

The decedent in this action, Billie Carol Shreve, was injured in an
automobile accident a short distance from the hospital run by Appellee, Ohio
County Hospital Corporation . She was properly taken to the hospital's
emergency room, and was first seen by a registered nurse who performed
triage. The patient had indications of blunt abdominal trauma and stated that
she was uncomfortable, and although she otherwise appeared stable at first,
rapidly deteriorated. Her blood pressure began to drop severely and her pulse
rate elevated approximately an hour and twenty-five minutes after arriving at
the hospital, and she lapsed into unconsciousness some nine minutes later.
The nurse and doctor attending her testified that by that time, they believed
she had gone into shock, was probably hemorrhaging, and was in need of a
surgeon. However, there was no surgeon available to the hospital, or one was
not called. The attending physician could not pinpoint the source of bleeding,
but ordered blood transfusions. This treatment gave rise to a negligence claim
that is not before the Court. Despite no surgeon being available, the patient
was not transferred to an appropriate facility at that time . Instead, the
attending physician ordered a CT scan, but had to forward the films to another
hospital to have a radiologist read them . It was over four hours later before the
patient was transferred to another hospital. By the time she arrived, the
patient had bled to death.

The medical negligence action against the physician was settled before
trial, and the driver who caused the accident was never made a party. The trial
court gave an instruction on loss of consortium damages that limited those
damages to the brief period from the time of the accident until Mrs. Shreve's
death and to a total of $250,000. The jury awarded the maximum under this
instruction.1 Appellant Donald Ray Shreve offered a. post-death loss of
consortium instruction which the court declined, but he did not appeal this

The trial court also gave an apportionment instruction on the fault of the
driver, the doctor, and the hospital . The jury awarded no fault against the
driver, 50% of fault against the doctor, and 50% against Appellee . On appeal,
the Court of Appeals held that Appellee was entitled to a directed verdict both
on the claim made by Appellant, Donald Ray Shreve, the spouse of the
decedent, for loss of consortium, and on the claim made under the Emergency
Medical Treatment and Active Labor Act, (EMTALA), 42 U.S.C . § 1395dd. This
Court granted discretionary review.

A. Loss of Consortium after Death

The issue of whether a spouse may claim loss of consortium after the
death of her spouse turns on what the silence of the legislature on that issue in
KRS 411.145 means.

At common law, loss of consortium was historically a one-way street. A
husband could claim loss of consortium with his wife up until her death, but a
wife could not claim the same loss with her husband. Then, in 1970, this
Court's predecessor in Kotsiris v. Link, 451 S.W.2d 411 (Ky. 1970), expanded
the cause of action for loss of consortium to allow a wife the same claim . That
same year, KRS 411 .145 was enacted, and states as follows :

(1) As used in this section "consortium" means the right to
the services, assistance, aid, society, companionship and conjugal
relationship between husband and wife, or wife and husband.

(2) Either a wife or husband may recover damages against a third
person for loss of consortium, resulting from a negligent or wrongful act
of such third person.

The statute defines "consortium" in such a way that it does not
necessarily include financial support, but can be read to cover only the
emotional and physical elements of a relationship between husband and wife
such as love, companionship, and sexual relations . As such, it does not cause
a double recovery through a wrongful death action claiming economic loss .
Also, contrary to the common law up until Kotsiris , either a husband or wife
may recover damages for this loss from a culpable third party. On its face, the
statute gives equality for loss of consortium to both spouses, and codifies loss
of consortium as a cause of action.

However, loss of consortium developed as a common law concept, and
under common law it terminated with the death of the spouse. The reasoning
was that death terminated any possibility of a spousal relationship, and thus
all loss would be covered by a wrongful death action . See generally Thomas
Cooley, A Treatise on the Law of Torts 470 (3d ed . 1906) . Grounded initially on
the loss of sexual congress, the common law doctrine evolved to include the
"softer" aspects of a relationship, and finally, in Kotsiris, an equal claim for
either spouse.

But with the enactment of the statute, the General Assembly made loss
of consortium a statutory cause of action, which belongs specifically to a
spouse, not to the estate of the deceased . The statute is silent as to whether
such a claim is limited to the loss up until the spouse's death or extends
beyond it. At common law, as noted above, loss of consortium claims ended at
death. An argument can be made that the legislature intended to codify the
cause of action of loss of consortium as it existed at common law, and thus the
silence must be interpreted to mean that the claim still ends at death. But an
equally viable argument can be made that if legislators had so intended, they
would have said so. Instead, the statutory language is a broad grant without
stated limitations of any kind, subject only to the general principles of tort law
and the procedural rulings of the courts .

Thus the Court is left to construe the statute until the legislature clarifies
its meaning by amending the statute or enacts a different statute.

Appellant argues that spouses have a loss of consortium claim extending
beyond the death of their spouse because this Court extended such a right to
children in Giuliani v. Guiler, 951 S.W .2d 318 (Ky. 1997) . Finding that "[t]he
claim of loss of parental consortium is a reciprocal of the claim of the parents
for loss of a child's consortium which was recognized in KRS 411 .135," id. at
321, this Court determined that recognizing a parent's right to loss of love and
affection of a child and not allowing the converse for the child ran counter to
public policy which favors strengthening family bonds. It is interesting to note
that the statute limits the parents' recovery to the time it would have taken a
child to reach majority, but this Court did not specify such a restriction on the
child's claim for loss of consortium . The opinion is completely silent as to the
duration of the damages. In other ways, however, this case is significantly
different from Guiler.

First, there is a statute which gives spouses a claim for loss of
consortium . To date, there is still no statute which gives children a right to
parental loss of consortium damages. Contra, KRS 411.135 gives parents
damages for loss of consortium with the child . That statute, which this Court
in Guiler termed as "reciprocal" to a child's loss of parental consortium claim,
does not appear to create a separate cause of action, but instead begins, "In a
wrongful death action in which the decedent was a minor child," and goes on to
say that the loss of affection and companionship is an element of damages to
be recovered "in addition to all other elements of the damages usually
recoverable in a wrongful death action." This appears to be an additional
element of damages within the wrongful death statute, not a separate cause of
action for loss of consortium. Nevertheless, this Court has held that the
parents of a deceased child do have a claim under this statute for the loss of
affection and companionship of their child regardless of whether the personal
representative of the child's estate ever asserts a claim for wrongful death.
Dep't of Educ . v. Blevins, 707 S.W.2d 782, 785 (Ky. 1986) . That opinion
followed the Guiler decision, and is consistent with the notion that loss of
consortium is a personal rather than an estate right. The statutes do not give
children such a personal claim ; that was done by the Court in Guiler.

KRS 411 .145, which was enacted in 1970, the same year the Court
issued its opinion in Kotsiris, says that a wife or a husband "may recover
damages against a third person for loss of consortium" resulting from a
negligent or intentional act, clearly establishing a separate cause of action for
spousal loss of consortium. Such a recovery is not premised on the spouse's
death, so it is not specifically a part of a wrongful death claim under Kentucky
law. Loss of consortium damages can be obtained whenever a spouse is
wrongfully incapacitated by a third party to the extent that the marital
relationship has been damaged due to that harm. A loss of consortium action
can continue even when the injured spouse or the estate has settled or
otherwise been excluded from an action, because there is not a "common and
undivided interest" in the spouse's claim for loss of consortium and the
underlying tort claim . Poplar v. KKI, LLC, 2005 WL 2739158 (W.D . Ky. 2005)
(unpublished decision) ; see also Blevins, 707 S.W.2d at 783. Thus, because
the legislature has spoken on this subject, this is not a matter of the Court
declaring the common law as it did in Guiler.

But just as the Court did not address whether loss of parental
consortium continues after the age of majority in Guiler, the legislature has not
addressed specifically in the statute whether loss of consortium damages
continue after the death of the spouse in KRS 411.145. This question was not
at issue in Guiler, but is the controlling question here . Thus this Court must
answer that question, and does so by saying that loss of consortium damages
under KRS 411 .145 do not cease at death.

The Court reaches this conclusion by first looking at the language of the
statute: "a wife or a husband may recover damages." Those damages, as
enumerated in subsection (1), encompass "services, assistance, aid, society,
companionship and conjugal relationship . . . ." KRS 411 .145(1) . When this loss
results from a "negligent or wrongful act" of a third person, the legislative
intent is clear that this person must compensate the spouse for the loss. The
general focus of this statute is compensatory in nature.

The courts have been exhorted that "common sense must not be a
stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins.
Comm'n , 450 S.W.2d 235, 237 (Ky. 1970) . It is apparent that the kinds of
damage elements enumerated in the statute are those that describe the
personal relationship, mental and physical, between spouses. It is equally
apparent that the pain and deprivation coming from loss of such interactions
does not magically disappear the day a spouse dies . It defies common sense to
put a value on such losses while a spouse is lying incapacitated, but to say the
loss is worthless after death. While grief and loss are borne in different ways
by different people, it is nonetheless a common part of the human condition
that ajury can properly evaluate based on the facts and circumstances of each

Further, since the statute is intended to be compensatory, full
compensation cannot be had if the damages claimed are required to terminate
at death. Indeed, in many cases death is so sudden or follows so quickly after
the injury that to cut loss of consortium damages off at death is to essentially
deny the cause of action to the spouse altogether . In creating the cause of
action, the legislature did not indicate in the statute that it applied only when
the victims survived . To read the statute that way would be to create a class of
plaintiffs whose cause of action depended on the vagaries of fate, rather than
an orderly operation of law. Can it reasonably be said that one whose spouse
survives suffers more loss of consortium than one whose spouse dies?

Moreover, allowing a loss of consortium claim only if the victim survives
would appear to give perverse incentives to potential tortfeasors . Such a rule
could create incentives to kill victims instead of leaving them disabled, as only
by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of
consortium damages. While this logically follows the common law rule, it is
obviously absurd.

Twenty-six other states have some form of loss of spousal consortium set
forth in a statute,2 as Kentucky has done, although Kentucky appears to be
unique in that our statute does not address whether such damages terminate
or continue at death. All of these other states specifically recognize that the
types of damages set forth in KRS 411 .145 continue after death, usually by
including them as elements of damage in their wrongful death statutes . Some
states, such as Iowa, include the damages in the wrongful death action, and
require that the claim be made by the personal representative of the estate, but
on behalf of the spouse who lost consortium . Regardless of the mechanism
used, all these states allow post-death claims. Our statute, which makes loss
of consortium a personal right which can be claimed directly by the spouse, is
in line with the recognition by these other states that the claim is separate from
the claim for the injuries to the deceased spouse . It is reasonable to construe
our statute as also intending to allow post-death loss of consortium, since
there is no express limit on those damages.

For the states that do not expressly include loss of consortium in their
wrongful death statutes, fifteen recognize through their case law that loss of
consortium damages continue past death,3 while only seven stop them at the
death of the spouse, 4 which is what Kentucky's common law did . See Rogers
v. Fancy Farm Telephone Co. , 160 Ky. 841, 170 S .W. 178, 179 (1914) . The fact
that our legislature deemed it necessary to enact a statute creating this cause
of action instead of leaving it to the common law demonstrates that it wished to
depart from the common law approach to loss of consortium, since the enacted
statute supersedes the common law. The legislature took the common law
claim for loss of consortium, expanded it to include women, and defined the
elements of the damages. It did not include the limiting language of "until
death," when it could easily have done so when listing any or all of the
elements of damages. Instead, it used the broad compensatory language "may
recover damages." While an argument can be made that the broad language of
the statute is equally amenable to the construction that the legislature
intended to adopt the claim as it then existed, it would have said so if that were
the intention. Otherwise, there was no need for the legislature to act at all.

The Appellee has argued that the statutory definition of "marriage" in
KRS 402.005 precludes recovery for spousal consortium after death because
marriage is defined as a man and a woman being united "for life ."
Consequently, they argue, marriage ends at death and thus spousal
consortium must end at death. If the Court were looking at the question of the
legal effect of marriage laws after death, this might have more merit. However,
a loss of consortium claim is grounded on compensation for a third party's
wrong-doing which intervenes in the marital relationship so as to deny spousal
consortium. It provides liability for wrongfully depriving or cutting short the
marital relationship . This claim is not about whether a marriage has ended,
but rather about whether the marital relationship could have continued but for
the wrong-doing of the third party. The loss that comes from wrongly depriving
a spouse of her relationship with her husband, or vice versa, is definable and
measurable . It has little to do with the legal construct of marriage at death,
but everything to do with the relationship that was wrongly taken away from
the surviving spouse.

At the crux of this claim is compensation for loss of the most compelling
of human relationships, other than possibly that of parent and child . Our
legislature did not intend, nor does this Court, to devalue that relationship by
putting an arbitrary limit on the duration of what can be profound loss . Our
statute permits that loss to be evaluated by ajury, and therefore it is the right
of bereaved spouses to have such an evaluation . Thus, this Court reads KRS
411 .145 as allowing post-death loss of consortium claims . To the extent that
Clark v. Hauck Manufacturing Co ., 910 S.W.2d 247 (Ky. 1995), and Brooks v.
Burkeen, 549 S.W.2d 91 (Ky . 1977), neither of which cited KRS 411 .145, hold
otherwise, or can be read to do so, they are overruled.

The Court of Appeals is therefore reversed on this issue . Because of
some unusual procedural elements of this appeal, however, there is some
question as to the effect of that reversal . The Court of Appeals held that the
Appellee, who was the defendant at trial, was entitled to a directed verdict
because Mrs. Shreve had not lived long enough to allow for a loss of
consortium claim, since such a claim terminated at her death. This Court is
reversing because it reads KRS 411 .145 as allowing such claims and damages
to extend beyond death, meaning that a directed verdict on that ground would
not be proper. However, this also means that the loss of consortium
instruction given by the trial court was erroneous, as it limited damages to
those during Mrs. Shreve's life. But the Appellants (the plaintiffs at trial) did
not appeal the trial court's erroneous instruction, which had the effect "to deny
[them] something for which [they have] asked," Brown v. Barkley, 628 S.W.2d
616, 619 (Ky. 1982), and which therefore prevents the Appellants from undoing
the trial court's judgment. Thus, despite the erroneous instruction, this Court
cannot require a retrial on damages under an appropriate instruction. Nor can
this Court engage in the sort of review requested by the Appellee at the Court of
Appeals (i .e., review the sufficiency of the evidence of the loss of consortium
damages) because the Appellee did not file a protective cross-motion for
discretionary review on that issue with this Court, and the Court of Appeals did
decide it, ruling that no claim for loss of consortium could lie because of the
short time that Mrs. Shreve lived.

The only option is to reinstate the judgment of the trial court on this
issue, since this Court has concluded that the Court of Appeals improperly
reversed it . This is so despite the fact that an instructional error underlies the
trial court's judgment and arguably worked against the Appellants, since their
damages were more limited than this Court reads the law as allowing.
Reinstating that judgment, however, is not unjust, because it appears that
even with the flawed instruction, the Appellants received the maximum
damages they requested (and to which they were limited, that being the
amount listed in the interrogatories) . Because the Appellants did not appeal
the denial of a post-death loss of consortium instruction, a reinstatement of the
judgment as to loss of consortium damages would amount to giving them all
they asked for originally. Moreover, it is not improper to reinstate the trial
judgment on a ground not cross-appealed by the Appellants to this Court
because this Court would in effect be affirming the trial court but for different
reasons, which is acceptable even when there has been no cross-appeal. See
Carrico v. City of Owensboro, 511 S.W.2d 677, 679 (Ky. 1974) .


The Emergency Medical Treatment. and Active Labor Act (EMTALA), 42
U.S .C . § 1395dd, enacted by Congress in 1986, is sometimes referred to as an
"anti-dumping" statute because its primary purpose is to prevent hospitals
from "dumping" patients who lack insurance or cannot pay for their claims,
through refusing treatment or referring them to other hospitals. Thornton v .
Sw. Detroit Hosp . , 895 F.2d 1131 (6th Cir . 1990) . The claim here is not that
Appellee refused treatment at its hospital because the patient could not pay,
but that treatment was wrongfully delayed, leading to the patient's death. The
facts, on their face, are not a neat fit with EMTALA. In fact, the EMTALA claim
in this action is little more than a restatement of the malpractice claim against
the physician : that he wrongfully screened, tested, and treated the patient.
The intent of the statute is to ensure that a physician does not shirk screening
an indigent person or transfer that person to another hospital to avoid treating
him because he cannot pay, not to create a federal malpractice cause of action .
Nolen v. Boca Raton Cmtv. Hosp ., Inc., 373 F.3d 1151 (11th Cir . 2004).

Thus, it is arguable that EMTALA does not apply here because there is
no record that any actions taken by the hospital were based on the patient's
inability to pay; the patient was indeed given many services . Their efficacy may
be questioned as a medical malpractice claim, but not the fact that they were
not given . However, assuming that EMTALA does apply here, and because this
issue is capable of repetition, it contains a screening requirement, § 1395dd(a),
and a stabilization or transfer requirement, § 1395dd(b), and allows a private
cause of action directly against hospitals for violation of the duties created by
the statute, § 1395dd(d)(2) .

The screening requirement provides that, if a hospital at which an
individual seeks "examination or treatment" has an emergency room, the
hospital must provide "an appropriate medical screening examination within
the capability of the hospital's emergency department, including ancillary
services routinely available to the emergency department . . . ." The purpose of
providing such screening is "to determine whether or not an emergency medical
condition . . . exists." § 1395dd(a) . The hospital must do enough screening or
diagnostics to make that determination . If there is no emergency, this Act does
not apply. If the hospital determines that an emergency medical condition
exists, then the stabilization-or-transfer requirement kicks in . This requires
the hospital to provide additional medical examination and treatment within its
capabilities or to transfer the person to an appropriate facility. In reality, the
medical emergency may require some treatment, if within the hospital's
capability, before transfer, which is arguably what happened here.

However, subsection (c) of EMTALA places three alternative requirements
on the hospital, only one of which must be met, before it may transfer a
patient: that it get a request to transfer in writing from the patient; that a
physician sign a certification that the treatment reasonably expected to be
received at the other hospital outweighs the risks of transfer; and that if no
physician is physically present, qualified medical personnel as defined in the
statute may sign the risk certification if a physician has in fact made the
determination and later adopts it by signing it. § 1395dd(c) .

These facts are not in dispute : the hospital recognized that a medical
emergency existed at least when the patient lost consciousness, if not before
(based on the triage nurse's claim that she was suspicious of a serious injury
and thought surgery would be necessary once Mrs. Shreve's blood pressure
dropped and pulse elevated) ; at some point during the four or so hours the
patient was at the hospital, the hospital recognized that the surgeon who was
on call was not available ; during that wait, the hospital undertook treatment by
transfusing the patient to counter her blood loss, and continued further
attempts to determine the source of the bleeding, including having a CT scan
done ; when that was unsuccessful, the physician began the process of
transferring the patient to another hospital, and completed and signed the
Certificate of Transfer as required by the statute.

While questions may abound as to whether the physician and hospital
staff performed all these events within the appropriate standard of care, those
questions are not covered by this statute. By its terms, this is a strict liability
statute: it asserts what a hospital must do, and creates liability for any failure .
If a hospital does not follow the requirements of the statute, it is liable. Any
personal harm to an individual will result in damages for personal injury under
local state law if caused by the violation, and will result in a fine of up to
$50,000 if the violation is negligent, or gross and flagrant, or repeated, and the
hospital may also lose its licensing. § 1395dd(d) . On the other hand, if the
hospital has complied with the statute's requirements, it is not material under
the statute how well it did them-that is a different cause of action, likely for
negligence. The Appellee was entitled to a directed verdict on the EMTALA
issues of screening and stabilization or transfer because all the requirements of
the statute were met.

This Court does not believe that improper motive is an element of the
individual EMTALA claim. If a hospital complies with the statute, motive is
obviously immaterial . But it is also immaterial when it does not comply,
because regardless of motive, the hospital has failed in its statutory duty, and
is thus liable. If there is no dispute that the hospital did or did not do what the
statute requires, then the personal cause of action is to determine damages
only. But this Court does recognize that there could be a dispute over whether
the hospital has done the necessary things, such as a scenario where a
physician testifies that he completed and signed the Certificate of Transfer, but
it cannot now be found in the record. Such questions of fact would also
obviously be determined at trial.

To that end, a general negligence instruction is not appropriate in an
EMTALA claim . The statute puts an absolute duty on hospitals to do what it
requires. Thus, appropriate instructions (if there is a liability question, and
assuming that the hospital has an emergency department) would be as follows.

If an emergency medical condition has not been determined, such as
when a patient is allegedly improperly screened :

It was the duty of defendant hospital to provide an
appropriate medical screening examination of the plaintiff
(decedent) within the capability of the hospital's emergency
department whether or not a medical emergency exists.

Do you believe, based on the evidence, that the hospital
provided such screening?

Yes___________   No___________

For instance, this instruction would apply when a patient was released without
further examination, stabilization or transfer on a determination that there was
no emergency medical condition, then later has problems or dies.

Continue reading >>>>>