Case of the Week

Same-Sex Partner Seeks Loss Of Consortium Damages

, The Connecticut Law Tribune

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The Law Tribune previews an important or interesting case most weeks when the Connecticut Appellate Court or Connecticut Supreme Court is in session.

Case: Margaret A. Mueller v. Isidore Tepler, M.D., et al.

Court: Connecticut Supreme Court

Date: Tuesday, Dec. 3

Time: 11 a.m.

Attorneys: Sean McElligott; Eric Stockman

Summary: A woman died as a result of medical malpractice, and her same-sex partner is attempting to make a claim for loss of consortium damages even though the women were never married. The plaintiffs argue that the partners would have been married at the time the malpractice occurred if Connecticut law had allowed it.

Background: Margaret Mueller and Charlotte Stacey had been in a committed relationship since 1985, supporting each other financially and emotionally.

Everything changed in 2001, when Dr. Iris Wertheim diagnosed Mueller as having ovarian cancer and performed a surgical procedure that involves cutting out the tumor's cells. The cells are then studied under a microscope to determine the specific type of cancer.

The pathology report stated that Mueller had cancer of the appendix, but Wertheim stuck with her original ovarian cancer diagnosis and continued to treat her patient with chemotherapy cycles for nearly four years.

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.

"The Connecticut Civil Union Statute and this court's decision in [the Kerrigan v. Commissioner of Public Health case] establish a public policy embracing the legal recognition of the dignity of same-sex relationships that should not be devalued in this case," McElligott concluded.

Eric Stockman, an attorney with Neubert, Pepe & Monteith, represents Mueller's doctor in the malpractice case. Stockman argues that the trial judge and appellate judges got it right.

"Certainly, the pain of losing a loved one is felt by more than just a spouse. Children, parents, grandparents, siblings, cousins, fiancées, lovers and friends may to a greater or lesser degree suffer true and enduring pain at the passing of their loved ones," writes Stockman to the justices. "The pain felt by these persons may well be similar to that felt by a spouse…"

However, Stockman notes that only persons entering into the "contract of marriage" are entitled to loss of consortium claims. He further argues that Stacey has failed to prove she was denied equal protection. In fact, he said she was treated the same as any unmarried heterosexual couple in a committed relationship.

"Kerrigan granted same-sex couples the right to choose to be married after a specific date; the court never stated that people in same-sex, committed relationships would be considered married before they obtained a marriage license," Stockman added.•

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