Medical Malpractice Case Takes Unexpected Detour Into Gay Marriage Issue

September 3, 2013 | Charles Bowen

untitledA recent Pennsylvania medical malpractice case took an unexpected turn--at least given the rather clinical practice area--when medical evidence gave way to arguments over the legal rights of same-sex couples. The case requires Pennsylvania courts to grapple with the issue of whether same-sex couples, who have no legal right to marry in the state, have the ability to file loss of consortium claims. A Philadelphia judge decided this week to toss the loss of consortium claim by Jesseca and Tammy Wolf against Temple University Health System. The Order comes at an interesting time when groups across the country, most notably the ACLU, have begun looking for unusual venues to challenge existing rights for same-sex couples. This is especially true in those states that do not recognize the right of such couples to marry.

In the Pennsylvania case, the Wolfs claim that any denial of Tammy’s claim for loss of consortium amounts to a violation of her equal protection rights under the state’s constitution. For those unfamiliar with this type of claim, a loss of consortium claim is a request for damages resulting from the loss of the companionship of an injured loved one caused by another person’s wrongful or negligent behavior. Loss of consortium claims are typically only made by married couples when one spouse has been injured and the other spouse suffers as a result of that injury.

The Wolfs’ case began when Jesseca went to the Associates of Podiatric Surgery and Medicine (a division of Temple University Health System) for a procedure on her foot. Jesseca claims that doctors performing her surgery left a metal object inside her foot that led to serious damage and painful corrective surgery. What started as a fairly typical medical malpractice case veered into uncharted legal waters when Tammy then filed a loss of consortium claim. Temple strongly objected to the claim, saying that state law is clear that such claims can only take place in the context of a legal (in the case of Pennsylvania) heterosexual marriage. Because gay marriage is illegal in the state, Temple argued, no loss of consortium claims should be allowed to stand.

The Wolfs tried arguing that loss of consortium claims should be allowed by those same-sex couples that hold themselves out as married, regardless of the legal status of their relationship. Their attorney pointed out that the two women have two young kids, a house and have been together for nearly 10 years. They share expenses and rely on one another for support, the legal basis for any loss of consortium claim in Pennsylvania. They have been living together since 1998, exchanged rings before friends and family in a 2004 ceremony and even filed official domestic partnership papers in 2007.

Despite uncontroverted evidence of a serious, committed relationship, the judge sided with Temple University and tossed the loss of consortium claim. Most experts believe the judge made the only possible decision given current state law and the previous cases decided by higher courts. A lack of any previous legal precedent or authority simply prevented the judge from ruling in favor of the Wolfs. Given the civil rights issues involved in this case--as well as the ACLU's history of using very similar situations to enact sweeping social changes--this case will definitely bear watching as it makes its way through the appellate process.