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Loss of consortium claim for same-sex civil union?

The recent flurry of national activity surrounding same-sex marriages brings to mind a recent case of ours. Margaret Mueller ("Marge") and her longtime partner Charlotte Stacey came to our firm several years ago. Marge had been treating for ovarian cancer for about 2½ years when she found out that she did not actually have ovarian cancer, but rather appendix cancer that had spread to her ovaries. The treatment for the two cancers was entirely different, and Marge lost the opportunity to treat her appendix cancer properly as a result of the botched diagnosis. Unfortunately, while the case was pending, Marge died.

Marge's lawyer - Josh Koskoff - filed a lawsuit not only for Marge, but also for Charlotte. In Connecticut, when one spouse is injured or dies through the fault of another person or entity, the spouse of that person has a claim for something called "loss of consortium." Loss of Consortium recognizes that a physical injury of one spouse often interferes in the marital relationship. This is especially true when instead of being equal partne rs, one spouse becomes the caretaker for the other.

However, Marge and Charlotte could not be married under Connecticut Law because Connecticut did not recognize the right of same-sex couples to marry at that time. Still, Josh argued that she should be able to bring a claim because they were deeply committed, and had in fact entered a civil union partnership when the Connecticut Legislature established that right in 2005. Despite this argument, a trial judge threw out Charlotte's claim on the basis that she was not married to Marge.

Marge's medical malpractice case continued to trial and Josh obtained a verdict of $2.45 million on behalf of the estate of Marge. He then appealed the denial of Charlotte's claim, arguing that it was unconstitutional to deny her the right to recover for her loss of Marge, as they were in a civil union AND COULD NOT BE MARRIED BECAUSE OF THE LAW! The appellate court agreed that there could be no recovery for Charlotte - essentially ruling on a procedural ground. Josh then petitioned the Supreme Court of Connecticut, which has agreed to hear the case. The Court will decide whether Charlotte should be allowed to seek recovery for the loss of Marge, even though they weren't married at the time, in light of the fact that they COULD NOT have been married. Same-sex marriage became legal in Connecticut in October, 2008.

Check back to this blog for updates on the case - they will be posted as they happen.

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