Temple looks to toss out same-sex couple's claim

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Temple University Health System is seeking to throw out a "loss of consortium" claim filed in a medical malpractice case, because the plaintiffs -- a same-sex couple -- have never been married and a marriage between them couldn't be recognized in Pennsylvania.

In Wolf v. Associates of Podiatric Medicine and Surgery filed last month, plaintiffs 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 by only married couples.

Temple said in its preliminary objections that Pennsylvania law does not recognize a loss of consortium claim for an injury that occurs prior to marriage. Temple also said Pennsylvania law defines marriage as between one man and one woman. It further noted that, contrary to the Wolfs' suggestion, the current trend is to dismiss an action for loss of consortium in situations of "nonmarital cohabitation."

In a footnote to the filing, Temple recognized 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 as constitutional.

The Wolfs' attorney, Gavin P. Lentz, said that regardless of the sex of the couple, courts should look at whether the pair exists in a close, familial relationship that would warrant a loss of consortium claim.

"If you're the same as a married couple, you should be able to recover for the loss," he said.

Mr. Lentz said last week that he intends to challenge Temple's contentions.


Gina Passarella: gpassarella@alm.com. Read more articles like this at www.thelegalintelligencer.com.


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