Can My Family Bring Their Own Claim After I Am Injured in Massachusetts?

Sometimes, and when they can, it is their claim rather than yours. Massachusetts calls it loss of consortium, and it compensates a family member for what the injury did to the relationship itself, not for medical bills or lost wages. The answer depends on which relationship you are asking about. A husband or wife has had this claim since Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973). A dependent minor child of an injured parent has had one since Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980). Parents of an injured child have one only because the Legislature wrote it into M.G.L. c. 231, sec. 85X after the Supreme Judicial Court declined to create it. Three rules then decide whether the claim is worth anything: it is legally independent, so the injured person’s own share of fault does not reduce it; it is not immune, because an adverse ruling in the injured person’s case can bind the family member; and if the injury happened at work, M.G.L. c. 152, sec. 24 has already taken the claim against the employer away. To talk through a specific situation, the Jim Glaser Law line at (617) JIM-WINS is answered 24 hours a day, and the first telephone consultation is offered without charge.

What a Consortium Claim Actually Compensates

A consortium claim is not a second helping of the injured person’s damages. It does not pay medical bills, it does not pay lost wages, and it does not pay for the injured person’s pain. Those all belong to the person who was hurt, and how they are valued is a separate subject taken up in how much a Massachusetts car accident case is worth.

What it pays for is the relationship. The Supreme Judicial Court has described the purpose of the action as being “to compensate for the loss of the companionship, affection and sexual enjoyment of one’s spouse”. In an ordinary case that translates into concrete things: the partner who used to drive, cook, carry, plan and share a bed is now someone who needs help with all of it, and the person doing the helping has lost the marriage they actually had.

This is why the law treats it as the family member’s own claim rather than an add-on to the injured person’s. Nobody else lost that. In Feltch v. General Rental Co., 383 Mass. 603 (1981), the court put the point in a single line: it is a claim for a loss which “never did belong to the injured party”.

That framing matters more than it sounds, and the rest of this article is mostly about what follows from it.

The Spouse’s Claim

Massachusetts did not always allow this. For most of the twentieth century a wife had no action at all when her husband was negligently injured, and the rule survived on the strength of Feneff v. New York Cent. & Hudson River R.R., 203 Mass. 278 (1909). Diaz ended it. The court concluded “that the reasoning of the Feneff case is vulnerable, and its result unsound”, and recognized the right in either spouse.

The requirement that comes with it is marriage, and Massachusetts has enforced that requirement in a case that makes the cost of it obvious. In Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987), the couple had lived together for about twenty years before the injury. They used the same surname, held themselves out as husband and wife, kept joint savings accounts, filed joint tax returns, jointly owned their home, and, in the court’s summary, “depended on each other for companionship, comfort, love and guidance”. They married two years after the accident. The consortium claim still failed. The court said it was unwilling to recognize a right to recover “by a person who has not accepted the correlative responsibilities of marriage”, and added that it was “not aware that any State court of last resort has recognized a right of recovery for loss of consortium outside of marriage”.

So the honest answer to the most common version of this question is unwelcome. A long-term unmarried partner in Massachusetts, however genuine the relationship and however heavy the caregiving, does not have a loss of consortium claim on the authority read for this article. Whether anything else in a particular set of facts gives that partner a claim is a separate question, and it is one for a lawyer looking at the facts.

The Children’s Claim When a Parent Is Hurt

Ferriter extended the idea downward. A worker was seriously injured on the job, and his wife and his two minor children sued the employer. The court held “that the Ferriter children have a viable claim for loss of parental society if they can show that they are minors dependent on the parent”, and it defined the dependence carefully: “This dependence must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture.”

Two later decisions filled in the edges.

In Angelini v. OMD Corp., 410 Mass. 653 (1991), the court reached a child who was not yet born when the crash happened. It held that a child who was “conceived before his or her parent suffered non-fatal injuries caused by the negligence of a defendant” and was “subsequently born alive, is not as matter of law precluded from recovering for loss of parental consortium”. The reasoning was consistency: a child in that position could recover if the parent had died, so denying recovery when the parent survived would be strange.

Adulthood is not automatically a bar either. Describing the Appeals Court’s decision in Morgan v. Lalumiere, 22 Mass. App. Ct. 262 (1986), the Supreme Judicial Court noted that it allowed a mentally and physically disabled adult child to recover for the loss of his mother’s consortium where he was “physically, emotionally, and financially” dependent on her. The common thread the court identified across all of these cases was “the unique and intense dependency intrinsic to the relationship of the parties”.

The practical translation for a family is that the child’s claim turns on dependence rather than on address or age alone. A twenty-two-year-old who moved out and supports himself is in a different position from a nineteen-year-old with a disability who relies on the injured parent for daily care.

The Parents’ Claim When a Child Is Hurt: a Statute, Not the Common Law

This is the branch that most often surprises people, because the parents’ claim came from the Legislature rather than from the courts, and it arrived with conditions the common-law claims do not carry.

In Norman v. Massachusetts Bay Transportation Authority, 403 Mass. 303 (1988), parents of a nineteen-year-old struck by an MBTA vehicle sued for the loss of their son’s consortium. The court refused. It explained that “in the ordinary course of events a parent does not depend on a child’s companionship, love, support, guidance, and nurture in the same way and to the same degree that a husband depends on his wife, a wife depends on her husband, or a minor or disabled adult child depends on his or her parent”, and it held flatly: “We conclude that the plaintiff parents cannot recover for the loss of their injured child’s consortium.”

The Legislature disagreed. As the court later described it in Monahan v. Town of Methuen, 408 Mass. 381 (1990), M.G.L. c. 231, sec. 85X “created a cause of action for parents’ loss of consortium of their child” and “was enacted in response to this court’s decision in Norman”. Monahan identifies the enacting act as St. 1989, c. 259.

The section is one sentence, and every word in it is doing work:

“The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.”

Read it slowly and three conditions appear. The child must be a minor, or else an adult child “dependent on his parents for support”. The child must have been “seriously injured”, a phrase the section does not define. And the defendant must be someone “legally responsible for causing such injury”, which is the ordinary requirement that there be a viable tort claim underneath.

Monahan is the case that gives “dependent on his parents for support” its content, and it is stricter than parents expect. The court held that for an adult child to qualify, “that child must be, at the very least, financially dependent on his parents, either prior to or after the accident, or both”. The parents in that case lost, because their son was not financially dependent on them before or after.

That result runs against the intuition almost every parent of a badly hurt adult child has, which is that they are the ones absorbing the injury: the driving, the appointments, the room reorganized around a hospital bed. Under the statute as written, caregiving by the parents is not the test. Support flowing to the child is. If the injury has made an adult child financially dependent on his parents when he was not before, Monahan’s own language reaches that situation, because it accepts dependence arising “after the accident”.

Independence Is a Legal Term, and It Cuts in the Family’s Favor

Feltch is the case that decides what a consortium claim is worth when the injured person was partly at fault, and the numbers in it tell the story. A jury put Donald Feltch’s damages at $312,000 and found him 37.5 per cent negligent, so his own recovery came down to $195,000. His wife Anne’s consortium verdict was returned at $73,125, which the trial judge accepted was $117,000 reduced by the same 37.5 per cent.

The Supreme Judicial Court held that reduction was wrong and ordered the verdict corrected back up to $117,000.

The defendants had argued the obvious position, that a consortium claim “is derived from the initial injury to the other spouse, and hence is subject to all of the defenses which can be asserted against the injured spouse”. The court rejected it: “We think the appropriate analysis is to examine the nature of the claims, not the source of the injuries.” Analyzed that way, the consortium claim is one for a loss that “never did belong to the injured party”, and so “we conclude that the consortium claim is independent.”

The court also stated the family-law principle underneath, which is worth quoting because it explains why the result is not a technicality: “Generally, misconduct cannot be imputed from one family member to another.”

Feltch then closed the obvious workaround. Defendants asked to be allowed to counterclaim against the negligent injured spouse in order to get the reduction indirectly. The court refused, holding “that in a suit for loss of consortium, the injured spouse may not be joined as a defendant.”

The practical consequence for a Massachusetts family is real money. If a driver is found 40 per cent responsible for his own crash, his damages drop by 40 per cent, and his spouse’s consortium damages do not. Anyone told by an adjuster that the whole family’s claim gets discounted by the injured person’s fault percentage is being told something Feltch decided the other way. How that percentage gets fought over in the first place is covered in the article on comparative negligence and partial fault.

The Exception in the Same Case: Money Laid Out for Medical Care

Feltch drew a line that matters whenever a spouse has been paying for the injured person’s care. The court distinguished an older decision, Thibeault v. Poole, 283 Mass. 480 (1933), in which a husband sued for the medical expenses of treating his injured wife and had his recovery cut down by her negligence. That was correct, and it does not conflict with Feltch, because the two claims are not the same animal: “Unlike loss of consortium, the expense of medical care does not constitute an independent tort against the uninjured spouse, but merely represents one form of damages which flow from the other spouse’s injury.”

So within one household there can be two claims by the same person that behave differently. The consortium claim rides above the injured spouse’s comparative negligence. A claim for money that spouse laid out for medical care does not. Where those medical bills go in a settlement is its own subject, taken up in who gets paid out of a Massachusetts injury settlement.

Independence Does Not Mean Immunity

Independence protects the family member from the injured person’s fault. It does not protect them from the injured person losing.

Corrigan v. General Electric Co., 406 Mass. 478 (1990), is the case that proves it. A wife sued for loss of consortium after her husband claimed a back injury at work. Before her case was decided, the Industrial Accident Board had already found that the husband never sustained the injury he claimed. The court held she was collaterally estopped from relitigating that question, and her claim was over. (Her claim against the employer was in court at all only because the injury happened in 1980, before the amendment described later in this article.) Its description of the relationship between the two claims is the sentence to remember: although the consortium claim “remains a separate cause of action, the relationship to her spouse’s claim is symbiotic.”

The standard the court applied comes from Fidler v. E.M. Parker Co., 394 Mass. 534 (1985), which had already held that a spouse who was not a party to the first case could be precluded where the two claims were “sufficiently related” and no “other circumstances exist which warrant relitigation of the issues”.

Put the two cases side by side and the shape of the rule is clear. Whether the injured person was careless is not the family’s problem. Whether the injury happened at all, and whether the defendant caused it, very much is.

Deadlines, and the Joinder Point Behind Them

The limitations period is the ordinary one. M.G.L. c. 260, sec. 2A provides that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues”. The full treatment, including the exceptions, is in the article on the Massachusetts personal injury statute of limitations.

Diaz itself warned against the assumption that a family member can sit out the injured person’s case and file later. Its closing footnote states that “any consortium claim which, independently considered, has been barred by limitations, will not be revived by attempted joinder in an action by the other spouse for the physical injuries which may itself have been timely instituted.” Independence runs both ways: a claim that stands on its own also expires on its own.

The same opinion explains why these claims are normally brought together. The court observed that a defendant “could ordinarily insist, if he considered it to his advantage, that the other spouse be joined in the main negligence action so that a possible claim for loss of consortium should not be outstanding when the negligence claim was disposed of”. Joinder is the default, and it is usually the defendant who wants it.

One sentence in Diaz is easy to misread, and it is worth reading in place. The court said that where the injured person’s claim “has been concluded by judgment or settlement or the running of limitations”, no later consortium action arising from the same incident will be allowed. Read on its own, that looks like a rule that any settlement by the injured person extinguishes the family’s claim. It is not. The sentence is expressly limited by its own terms to claims concluded “prior to the coming down of this opinion” in 1973, and it sits in the passage where the court is deciding how far its brand new rule should reach backwards. It was a transition rule. What an actual settlement does to a family member’s claim today depends on preclusion under Corrigan and Fidler, on the limitations clock, and above all on the wording of the release that was signed, which is a document a lawyer needs to read.

The Workplace Rule That Undoes Ferriter’s Best-Known Holding

Ferriter did not only recognize the children’s claim. It also held that the workers compensation statute did not stand in the way, in terms: “The Workmen’s Compensation Act does not bar the plaintiffs’ claims for loss of consortium and society.”

That part of Ferriter is no longer the law. Anyone relying on the case for a family claim against an employer is relying on a holding the Legislature took away.

The Legislature amended M.G.L. c. 152, sec. 24 by St. 1985, c. 527. Describing that amendment in Corrigan, the Supreme Judicial Court said it was the version “which effectively abolished loss of consortium actions for spouses and children of employees covered by workers’ compensation”, and stated that “The Legislature, however, has since nullified the Ferriter decision”.

The served text of section 24 today says so on its face. Where an employee has not given written notice preserving common-law rights, the statute provides that “the employee’s spouse, children, parents and any other member of the employee’s family or next of kin who is wholly or partly dependent upon the earnings of such employee at the time of injury or death, shall also be held to have waived any right created by statute, at common law, or under the law of any other jurisdiction against such employer, including, but not limited to claims for damages due to emotional distress, loss of consortium, parental guidance, companionship or the like, when such loss is a result of any injury to the employee that is compensable under this chapter.”

Two things follow, and the second one is the reason this is worth understanding rather than despairing over.

First, if a Massachusetts worker is hurt on the job in a way covered by the compensation act, the family’s consortium claim against that worker’s employer is gone. Not weakened, not harder to prove. Waived by statute along with the employee’s own right to sue. What the family gets instead is the compensation system, which is described in the articles on how long workers compensation lasts in Massachusetts and workers compensation attorney fees.

Second, the waiver in that sentence runs “against such employer”. It does not reach anyone else. A great many workplace injuries are caused by somebody who is not the employer: another contractor on the site, a driver who hits a worker in a parking lot, the manufacturer of a machine that failed. Against that defendant the ordinary rules in this article apply, and the family’s consortium claim is live. Sorting out who the defendants actually are is the first real question in any work injury with an outside party involved.

One Motor Vehicle Question This Article Does Not Answer

Massachusetts limits pain and suffering recovery in car accident cases. M.G.L. c. 231, sec. 6D provides that in a motor vehicle tort action “a plaintiff may recover damages for pain and suffering, including mental suffering associated with such injury, sickness or disease, only if” the reasonable and necessary medical expenses exceed two thousand dollars, unless the injury falls into one of five listed categories. That threshold is covered in full in the article on the serious injury threshold.

Whether a family member bringing a consortium claim has to satisfy that threshold in their own right is a question the sources read for this article do not resolve, and this page is not going to guess at it. What is clear is that the consortium claim is normally brought in the same tort action as the injury claim, so how the injured person’s case clears or fails to clear section 6D is central to how the whole matter is litigated. It is a specific question worth putting to a lawyer early rather than late.

If the Injury Was Fatal, a Different Statute Governs

Loss of consortium is a claim about a living injured person. When the person dies, the recovery for the family moves into the wrongful death statute, M.G.L. c. 229, sec. 2, and it is brought by the executor or administrator of the estate rather than by each relative separately.

Norman drew that contrast itself, observing that if the injured young man in that case had died, “his parents, as next of kin, would have been entitled to recover under the wrongful death statute” for the loss of his consortium. That is part of why the court saw the parents’ claim for an injured survivor as a question for the Legislature. The mechanics of a fatal case, including who may bring it and what it recovers, are set out in the article on Massachusetts wrongful death claims.

What Actually Proves a Consortium Claim

There is no formula and no multiplier. A consortium claim is proved with specifics about a life that changed, and the specifics are usually mundane rather than dramatic. These claims tend to cluster around injuries that permanently alter what a person can do, which is why they come up most often in cases like traumatic brain injury and spinal cord injury.

What tends to carry weight is the before and after of ordinary shared tasks. Who drove the children. Who handled the stairs, the shopping, the yard, the finances. How many hours a week the uninjured spouse now spends on care that used to be nobody’s job. What the couple did together on a Saturday in the year before the crash and what they do now. Adjusters and juries respond to that kind of detail for the same reason they respond to it in an injury claim generally: it can be checked, and adjectives cannot.

It is worth knowing the cost of bringing the claim before deciding to bring it. A consortium plaintiff puts their own marriage and their own life into the case, and the other side is entitled to test it. Financial records, social media, testimony about the relationship before the injury and about anything that was already strained: all of it becomes fair territory once the claim is filed. The discovery rules that govern that exposure are covered in the article on social media in a Massachusetts injury claim. For some families that is a straightforward trade. For others it is not, and it is a decision to make with a lawyer rather than by default.

The last practical point is a timing one that follows from everything above. Because these claims are independent, they can be overlooked entirely while everyone concentrates on the injured person’s medical treatment, and because they are independent, the three-year clock in M.G.L. c. 260, sec. 2A runs on them anyway. The time to identify who in a household has a claim is at the start of the case, not at the end of it. What that process looks like from the inside is described in the article on the Massachusetts car accident settlement timeline.

Frequently Asked Questions

Q: Can my husband or wife sue for what my injury did to our marriage?

A: In Massachusetts, yes, and it is their own claim rather than part of yours. The Supreme Judicial Court recognized a right of recovery in either spouse for loss of consortium in Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973). What it compensates is the relationship, described in the case law as compensating “for the loss of the companionship, affection and sexual enjoyment of one’s spouse”, not medical bills or lost wages, which belong to the injured person’s own claim.

Q: We have lived together for years but never married. Can my partner bring a claim?

A: On the authority read for this article, no. Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987) involved a couple who had lived together about twenty years, used the same surname, held themselves out as married, filed joint tax returns and jointly owned their home, and the loss of consortium claim was still rejected. The court declined to recognize a right to recover “by a person who has not accepted the correlative responsibilities of marriage”. Whether other claims exist on a particular set of facts is a question for a Massachusetts attorney.

Q: Can my children bring a claim if I was the one hurt?

A: A dependent minor child can. Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980) held that children have a viable claim for loss of parental society if they can show they are minors dependent on the parent, and that the dependence “must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture”. Angelini v. OMD Corp., 410 Mass. 653 (1991) extended that to a child conceived before the parent’s non-fatal injury who was subsequently born alive, and Massachusetts has also allowed a disabled adult child who was physically, emotionally and financially dependent on the injured parent to recover.

Q: My adult son was badly hurt and I am the one caring for him. Do I have a claim?

A: It depends on financial dependence rather than on caregiving. M.G.L. c. 231, sec. 85X gives a cause of action to “The parents of a minor child or an adult child who is dependent on his parents for support”. Monahan v. Town of Methuen, 408 Mass. 381 (1990) read that phrase to require that an adult child “must be, at the very least, financially dependent on his parents, either prior to or after the accident, or both”, and the parents in that case lost because their son was not. If the injury has made an adult child financially dependent on his parents when he was not before, that language reaches the situation. It is worth putting the specific facts to an attorney.

Q: Does the parents’ claim exist because of a court decision or a statute?

A: A statute. In Norman v. Massachusetts Bay Transportation Authority, 403 Mass. 303 (1988) the Supreme Judicial Court held that “the plaintiff parents cannot recover for the loss of their injured child’s consortium”. The Legislature then created the claim by statute. Monahan v. Town of Methuen describes M.G.L. c. 231, sec. 85X as having been enacted in response to Norman, and identifies the enacting act as St. 1989, c. 259. That history is the reason the parents’ claim carries conditions the spouse’s claim does not.

Q: I was partly at fault for the accident. Does that reduce my spouse’s claim too?

A: No. Feltch v. General Rental Co., 383 Mass. 603 (1981) held that a consortium verdict should not have been reduced by the injured spouse’s 37.5 per cent share of negligence, and ordered it corrected upward from $73,125 back to $117,000. The court concluded that the consortium claim is independent and that “Generally, misconduct cannot be imputed from one family member to another”. It also held that in a suit for loss of consortium the injured spouse may not be joined as a defendant, which closed the indirect route to the same reduction.

Q: My spouse paid for a lot of my treatment. Is that part of the consortium claim?

A: No, and it follows a different rule. Feltch distinguished a claim for the cost of medical care from a consortium claim, explaining that “the expense of medical care does not constitute an independent tort against the uninjured spouse, but merely represents one form of damages which flow from the other spouse’s injury”. The practical result is that a claim for those expenses can be reduced by the injured person’s comparative negligence even though the consortium claim cannot.

Q: If I lose my case, does my spouse still have a claim?

A: Often not, and this is the real limit on the word independent. In Corrigan v. General Electric Co., 406 Mass. 478 (1990) a workers compensation board had already found the husband never sustained the injury he claimed, and the wife was collaterally estopped from relitigating that question in her consortium case. The court said that while the consortium claim “remains a separate cause of action, the relationship to her spouse’s claim is symbiotic”. Independence protects a family member from the injured person’s fault, not from a finding that the injury or the causation was never established.

Q: I was hurt at work. Can my family sue my employer for loss of consortium?

A: Generally no. M.G.L. c. 152, sec. 24 provides that where the employee has not given written notice preserving common-law rights, the employee’s spouse, children, parents and dependent family members are also held to have waived any right “against such employer, including, but not limited to claims for damages due to emotional distress, loss of consortium, parental guidance, companionship or the like”. Corrigan describes that version of the statute as having “effectively abolished loss of consortium actions for spouses and children of employees covered by workers’ compensation”. Note the words “against such employer”: if someone other than the employer caused the injury, such as another contractor, a driver or an equipment manufacturer, the family’s claim against that party is not covered by the waiver.

Q: How long does my family have to bring a consortium claim in Massachusetts?

A: The general tort limitations period applies. M.G.L. c. 260, sec. 2A requires that tort actions “be commenced only within three years next after the cause of action accrues”. Because these claims are independent, they expire independently: Diaz warned that a consortium claim already barred by limitations “will not be revived by attempted joinder in an action by the other spouse for the physical injuries which may itself have been timely instituted”. Identifying who in a household has a claim belongs at the beginning of a case rather than the end.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Whether anyone in a particular family has a consortium claim, and what it is worth, depends on facts that have to be investigated. For advice about a specific matter, speak with a Massachusetts attorney. The Jim Glaser Law line is answered 24 hours a day at (617) JIM-WINS, and the first telephone consultation is offered without charge.