The Connecticut Supreme Court ruled unanimously on July 16 that a woman whose same-sex partner was misdiagnosed with the wrong kind of cancer when it was too late for effective medical treatment can assert a claim for damages for loss of consortium if she can show that the women would have married had they not been prevented from doing so by state law. Although the court’s ruling involves the only such claim that has been presented in Connecticut, it may have significance as a persuasive precedent in other states where recent extension of the right to marry to same sex couples might make such claims plausible. The case is Mueller v. Tepler (SC 18939).
Because the trial judge in this case granted the defendants’ motion to strike the loss of consortium claim as legally deficient, the court sent the case back to the trial court to allow the surviving partner to file an amended complaint making the necessary factual allegations concerning the women’s relationship.
Margaret Mueller and Charlotte Stacey became domestic partners in 1985, living together continuously until Mueller’s death from cancer in January 2009. In August 2001, Mueller was referred to Dr. Iris Wertheim after testing by her gynecologist showed that she had cancer. Wertheim performed surgery to remove cancerous tumors, which were then examined by a pathologist, who identified the cancer as a cancer of the appendix. “Wertheim either failed to review the pathology report or misinterpreted its findings,” according to the opinion by Connecticut Chief Justice Chase T. Rogers. “As a result of this negligence, Mueller was mistakenly diagnosed with ovarian cancer. Mueller remained under the care of Wertheim until March 5, 2004. Although the diagnostic error was discovered in April, 2005, Mueller’s cancer had progressed to a stage where some of the tumors no longer could be removed surgically.” Mueller and Stacey entered into a civil union during 2005 when Connecticut’s new civil union law went into effect, after the negligent medical treatment she had received.
Dying from ovarian cancer, Mueller filed a medical malpractice action against Wertheim and Dr. Isidore Tepler in January 2006, and a subsequent amended complaint asserted a claim for damages for loss of consortium by Charlotte Stacey. The complaint recited their long history as domestic partners to support the claim that Stacey had suffered the same kind of intangible injuries that a spouse would suffer in like situation. The defendants filed a motion to strike the loss of consortium claim, arguing that Connecticut law recognizes such claims only for persons who are legally married. Indeed, the Connecticut Supreme Court had previously rejected a claim brought by somebody who was engaged but not yet married, imposing a “bright line test” for reasons of public policy. The trial court granted the motion to strike from the bench on February 11, 2008, and granted a motion for judgment against Stacey on the loss of consortium claim on August 20, 2008. Just weeks later, the Connecticut Supreme Court ruled in Kerrigan v. Commissioner of Public Health that denial of marriage to same-sex couples violated a fundamental right to marry under the Connecticut constitution. Stacey appealed the denial of her claim.
In responding to the appeal, the defendants were confronted with the changing legal landscape in Connecticut created by the Kerrigan case. Recognizing that Stacey could now raise a claim that denying her the right to seek damages for loss of consortium might be unconstitutional, the defendants raised for the first time the objection that Stacey’s complaint did not allege that the women would have been married had that option been available at the time the alleged negligence occurred in 2001-1004, and thus her complaint was factually insufficient to raise a loss of consortium claim. The Appellate Court agreed with the defendants, and affirmed the trial court’s judgment against Stacey on this ground. Stacey then appealed to the Connecticut Supreme Court. Meanwhile, a jury had decided against one of the defendants and awarded $2.4 million in damages on the medical malpractice claim. The other defendant had settled the claims against him.
Th Connecticut Supreme Court faced two question on appeal. First was whether the court of appeals should have sent the case back to the trial court to give Stacey a chance to amend her complaint to allege that the women would have been married had Connecticut law allowed same-sex marriage, and second was whether such an allegation by Stacey would defeat the defendants’ motion to strike her claim for loss of consortium. The Supreme Court answered both questions in the affirmative.
Its answer to the first question depended on complicated issues of appellate practice, boiling down to the unfairness to Stacey in light of the change circumstances presented by the Kerrigan decision of not giving her the opportunity to amend her complaint to make the necessary factual allegations. Of more significance as a precedent is the court’s answer to the second question, in which it expanded the tort of loss of consortium in Connecticut to include claims by partners who would have been married had the law not prevented it in situations like this one.
“We agree with Stacey’s claim that this could should expand the common-law claim for loss of consortium to members of couples who were not married when the tortious conduct occurred, but who would have been married if the marriage had not been barred by state law,” wrote Chief Justice Rogers. Rogers explained that the common law includes the “dynamic principle” that a court can develop the law “based on the changing attitudes and needs of society.” Thus, the court could expand the common-law loss of consortium legal claim to address such changes and, in light of the Kerrigan decision, it was appropriate to do so in this case.
“Specifically,” wrote Rogers, “society has come to accept the view that committed same sex couples who wish to marry are entitled to the same social and legal recognition as committed opposite sex couples who wish to marry” and thus that the court should reevaluate the right restrictions it had placed on loss of consortium claims in the past. Since marriage laws at the time of the negligence that took place in this case were out of line with public policy “because they did not reflect existing societal attitudes toward same sex relationships and marriage,” “we conclude that it would be both illogical and inequitable to require proof that the plaintiffs were actually married when the underlying tort occurred as a prerequisite to bringing a loss of consortium claim,” wrote Rogers.
Prior Connecticut cases identified three public policies in favor of limiting compensation to married couples: if a couple was not married, their commitment was not strong enough to give rise to a loss of consortium claim, an individual should not be allowed to “marry a cause of action,” and “liability for injury must be delineated at some point for public policy reasons.” The court had also recognized that such claims “should not be recognized if doing so would impair reasonable expectations and reliance interests in a serious way.”
As to the first of these, the court concluded that the “intangible elements” of a relationship of a committed same-sex couple and a married couple are the same. “Accordingly, a member of such a couple has the same interest in being compensated for the loss of these ‘intangible elements’ as a member of a married couple.” The court said that marriage could not equitably serve as the bright line test in this situation where “marriage is not an option.” Furthermore, it would be illogical in such circumstances to say that recognizing a loss of consortium case in these circumstances involved marrying a cause of action. Finally, said the court, it would be appropriate to require a person making such a claim to show that they would have been married if not for the legal bar, and that such a marriage would not have violated public policy otherwise. For example, such a loss of consortium claim could not be made if the reason the claimant could not be married to the injured party was because they were too closely related to be married under state law. The court found that allowing a same-sex couple to assert a loss of consortium claim would not undermine the public policies that the court had identified in its past cases that had rejected extending loss of consortium claims beyond married couples.
The court noted that the Massachusetts Supreme Judicial Court had reached a different conclusion in a similar case involving same-sex domestic partners in 2008. In that case the court had seen the issue as an attempt by the plaintiff to achieve retroactive application of its 2003 marriage equality ruling, which it had deliberately stayed for six months in order to give the legislature a chance to make necessary adjustments to state law before the right to marry went into effect. In Massachusetts the loss of consortium claim was statutory. The Connecticut court saw the issue differently in evaluating Stacey’s claim, based on Connecticut’s common law, as to which the courts have greater freedom to adjust legal principles in response to social change.
Thus, the court reversed the decision by the Appellate Court, and send the case back to reverse the trial court’s judgment against Stacey on the loss of consortium claim. The oral ruling on motion to strike the claim would be upheld, but this time with directions to allow Stacey to file an amended complaint making the necessary factual allegations.
The court’s decision won’t affect other Connecticut cases directly because the statute of limitations for such claims is two years, and same-sex marriage has now been available in Connecticut since 2008. However, the ruling could be a persuasive precedent for courts in other states where marriage became available to same-sex couples much more recently, leaving the possibility that such claims might arise within the period of the statute of limitations.
Stacey was represented on this appeal by attorneys Sean K. McElligott and Joshua D. Koskoff.
Tags: Connecticut Supreme Court, loss of consortium claims by surviving same-sex partner, medical malpractice loss of consortium claims, Mueller v. Tepler