Last week in a mediation in San Jose, California, a defendant’s insurance company offered our client a six figure settlement in a legal malpractice claim. Our client alleged that the defendant attorney, while representing his wife and consulting with both he and his wife regarding her claims, negligently failed to advise him of his right to a loss of consortium claim. The claim was eventually lost due to the passage of time. The settlement conference ended without a resolution of the case. The defendant’s attorneys contented that they did not have sufficient authority to pay our client’s settlement demand. At not time did the defendant’s attorneys contend that their client did not commit malpractice.
The legal theory of “Loss of Consortium” is generally the deprivation, in some degree, of the care, comfort,
affection, companionship, cooperation, service and/or sexual relations of a spouse due to an accident or injury. Our client’s wife suffered a severe electrical shock from a defective toaster that malfunctioned causing the severe shock. The wife, who is now our client as well, was so severely injured that she is unable to engage in or enjoy, the normal activities of life.
One of the results of the severe electrical shock the wife suffered was contracting Reflex Sympathetic Dystrophy Syndrome (RSD). RSD is a severe, painful, chronic, neurological syndrome also know as Complex Regional Pain Syndrome. RSD is characterized by extreme sensitivity to touch, severe burning pain, pathological changes in bone and skin, excessive sweating and tissue swelling. The wife’s case against the toaster maker (defective product) and the operator of the cafeteria where the toaster (premises liability) was located, is set for trial in January 2007.