Med Mal News

The case will now go back to the trial court, where lawyers for Stacey and for Mueller's estate will have to prove that the couple would have been married at the time of the medical malpractice if Connecticut had allowed it. Sean McElligott, one of the lawyers for the plaintiffs, said this “will be the easiest thing I've ever had to prove as a lawyer.” McElligott, of the firm of Koskoff, Koskoff & Bieder, noted that the couple had taken part in same-sex marriage protests since 1990 and had entered into a civil union within 40 days after Connecticut's civil union statute went into effect. In addition, said McElligott, they had a commitment ceremony before marriage was available, and after Kerrigan, “they got married even though [Mueller] was very sick. They'd been together 21 years. The only thing that prevented them from being married sooner was the fact that it was illegal.”

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CT Supreme Court Says Tort Recovery Available to Some Same-Sex Partners Prevented from Marrying

Connecticut's loss-of-consortium tort recovery statute allows a person whose spouse has been injured to recover damages from the tortfeasor. Until July, the requirement that the injured person be the claimant's spouse had seemed set in stone. But in conjunction with a medical malpractice case, Connecticut's Supreme Court ruled in Mueller v. Tepler, 2014 Conn. Lexis 251 (7/16/14), that a same-sex partner is entitled to seek damages for loss of consortium if she can prove that she and her deceased partner would have been married had the state not unconstitutionally barred them from marrying at the time of the tort. With this ruling, Connecticut becomes the first state to retroactively recognize the tort-recovery rights of same-sex partners who would have been married but for laws prohibiting them from doing so.

The case concerns a deceased woman, Margaret Mueller, who was misdiagnosed in 2001 by Dr. Iris Wertheim as having ovarian cancer, when in fact Mueller had cancer of the appendix. Mueller had a tumor surgically removed and analyzed: The pathology report stated that she suffered from cancer of the appendix. Dr. Wertheim stuck to her original diagnosis, however, and Mueller underwent chemotherapy cycles for the wrong cancer for four years. When the patient obtained another opinion and learned that she had been misdiagnosed, she also learned that her cancer had advanced too far and that she would soon die. Mueller died in 2009. Her estate collected $2.45 million in medical malpractice damages. The woman's longterm same-sex partner, Charlotte Stacey, sought damages for loss of consortium as part of that lawsuit, but the trial and appellate courts both ruled that such were unavailable to Stacey, as she and Mueller were not married at the time of Wertheim's malpractice. The Supreme Court, however, said that it was permitted to “expand the common-law action for loss of consortium as required to address new societal attitudes and situations.”

The case will now go back to the trial court, where lawyers for Stacey and for Mueller's estate will have to prove that the couple would have been married at the time of the medical malpractice if Connecticut had allowed it. Sean McElligott, one of the lawyers for the plaintiffs, said this “will be the easiest thing I've ever had to prove as a lawyer.” McElligott, of the firm of Koskoff, Koskoff & Bieder, noted that the couple had taken part in same-sex marriage protests since 1990 and had entered into a civil union within 40 days after Connecticut's civil union statute went into effect. In addition, said McElligott, they had a commitment ceremony before marriage was available, and after Kerrigan, “they got married even though [Mueller] was very sick. They'd been together 21 years. The only thing that prevented them from being married sooner was the fact that it was illegal.”

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