Same-sex pair's loss of consortium claim denied

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A Philadelphia judge has thrown out the loss of consortium claims raised by a same-sex couple in a medical malpractice case against Temple University Health System.

The judge's one-page order in Wolf v. Associates of Podiatric Medicine and Surgery comes amid a flurry of activity in the state regarding the rights of same-sex couples, including a lawsuit by the American Civil Liberties Union challenging Pennsylvania's ban on same-sex marriage, a promise from Attorney General Kathleen Kane not to defend the ban and a Montgomery County official's decision to grant two same-sex couples marriage licenses.

In their complaint, Tammy and Jesseca Wolf argued denying Tammy Wolf's loss of consortium claim based on her gender would violate the Pennsylvania Constitution's right to equal protection.

Loss of consortium is the loss of family or marital companionship caused by negligence, malpractice or some other wrongful act. Generally, in jurisdictions where the claim is recognized, the "loss" can be claimed only by married couples.

Temple Health, which also took exception to certain underlying medical-malpractice claims filed by Jesseca Wolf after a metal object was left in her foot after surgery, said in its preliminary objections to the lawsuit that Pennsylvania law does not recognize a loss of consortium claim for an injury that occurs prior to marriage.

"Since plaintiffs herein were not married at any relevant time, and a marriage between persons of the same sex is not recognized in Pennsylvania, Tammy Wolf's loss of consortium claim must be dismissed with prejudice as noncognizable under Pennsylvania law," Temple Health said.

In a footnote to the filing, Temple Health recognized that the Wolfs were not arguing the constitutionality of Pennsylvania's law limiting marriage to between a man and a woman. But the health system noted the statute has been upheld.

Widener University School of Law professor John Culhane said the ruling is not surprising given the is a lower court judge bound by the law established by the state's appellate courts. Unless there was precedent in Pennsylvania to say same-sex couples can make loss of consortium claims, this was the expected result, he said.

"Here the issue is not really so much same-sex versus opposite-sex," he said. "The issue is married versus not married."

In their response to Temple Health's preliminary objections, the Wolfs argued the court should extend the common-law loss of consortium claim enjoyed by married couples to same-sex couples who hold themselves out as married.

"Clearly the current trend in the law is to provide benefits to same-sex couples in a committed 'marital relationship,'" the Wolfs said in the court filing.

According to the complaint, Tammy Wolf shares responsibilities with Jesseca Wolf for child-rearing, payment of expenses, maintaining a household, assisting one another and comforting one another -- things the complaint says the couple has done for more than 10 years.

Jesseca Wolf is the mother of twins who have been raised by Jesseca and Tammy Wolf together, according to the complaint.

In their response to the preliminary objections, the Wolfs said they have held themselves out as a married couple and have the reputation of being married. They have lived together since 1998. They exchanged matching rings in 2004 and executed a declaration of domestic partnership in 2007, according to their filing.

legalnews

Gina Passarella: gpassarella@alm.com or 215-557-2494. To read more articles like this, visit www.thelegalintelligencer.com.


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