Case of the Week

Same-Sex Partner Seeks Loss Of Consortium Damages

, The Connecticut Law Tribune

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Wertheim sought out the opinion of another doctor, Isidore Tepler, as well as the Stamford Hospital Tumor Board, which consists of oncologists, pathologists and other types of physicians. They all backed Wertheim's diagnosis.

In total, Mueller battled through 24 cycles of chemotherapy with little improvement to her condition. Growing desperate, she sought out a different oncologist to ask about other treatment options.

The new doctor revealed that Mueller didn't have ovarian cancer. She had been misdiagnosed and actually did have cancer of the appendix. Then the doctor broke even sadder news — the cancer was too far along to be treated and Mueller wouldn't survive. She died in 2009 at age 62.

Mueller's estate sued her original doctor for medical malpractice and won. In 2010, a Stamford jury awarded her $2.45 million.

Initially included in the malpractice case was a loss of consortium claim for Mueller's partner. But it was thrown out by the trial judge who ruled that Charlotte Stacey could not recover loss of consortium damages because the plaintiffs had not been legally married prior to or during the dates of the alleged negligent acts.

Stacey appealed and the Appellate Court affirmed the trial judge's ruling, citing precedent that a claim for loss of spousal consortium cannot be brought by someone who was not married at the time the tort occurred.

Stacey had argued that the precedent should not apply to her. She said she and Mueller would have formalized their relationship if it were not for the unconstitutional deprivation of their right to do so under state law, as it existed at that time. But it wasn't until 2008 that the state Supreme Court and the legislature legalized same-sex marriage in Connecticut.

But the Appellate Court rejected that argument. The judges said that although Stacey claimed that she had been in a long-term relationship with Mueller and had entered into a civil union with her, the plaintiffs never speicifically stated in the lawsuit that the two would have been married if they had been allowed to do so.

The state Supreme Court has agreed to take up the appeal by the plaintiffs, who continue to maintain that Stacey is entitled to bring a loss of consortium claim. "When Ms. Stacey's spouse, Ms. Mueller, was injured, the public policy of the state of Connecticut prohibited same-sex partners from obtaining legal recognition of their life commitment to each other," writes the plaintiffs' lawyer, Sean McElligott, of Koskoff, Koskoff & Bieder.

"Since then, this public policy has been definitely rejected by both the Connecticut Legislature and the Connecticut Supreme Court," continued McElligott. "The fact that the sole reason Ms. Stacey and Ms. Mueller were not married on the date of the injury was a now repudiated public policy against legal recognition of lifelong same-sex relationships supports Ms. Stacey's claim for loss of consortium.

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