132 Conn. App. 742
Conn. App. Ct.2011Background
- Mueller was referred to Wertheim for cancer treatment in 2001 after gynecologist testing suggested cancer; Wertheim performed surgery in Oct. 2001 to remove tumors.
- Pathology report identified pseudomyxoma peritonei; defendant allegedly failed to review or misread it, leading to a wrongful ovarian cancer diagnosis.
- Mueller remained under Wertheim’s care until March 5, 2004; the error was not discovered until April 2005, by which time cancer was advanced.
- In Jan. 2006, Mueller (via her estate’s executrix after Mueller’s death) sued for medical malpractice and included loss of consortium claims (counts six and eight) attributed to Stacey, Mueller’s same-sex domestic partner.
- Stacey and Mueller had been domestic partners since 1985, joined in a civil union in 2005, and supported each other financially and emotionally; however, they had not alleged they would have formalized a marriage or civil union before March 5, 2004.
- Trial court granted motions to strike counts six and eight of the third amended complaint; the appellate court ultimately affirmed, holding the necessary formalization before the tort did not occur as pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss of consortium requires a prior marriage or civil union at the time of the tort. | Stacey argues they would have formalized their relationship absent constitutional barriers. | Gurliacci requires marriage at the time of tort; no pleaded alternative. | Loss of consortium not viable without pleaded prior formalization; affirmed. |
| Whether Gurliacci’s rule can be avoided because same-sex couples would have married but for unconstitutional deprivation. | Kerrigan/retroactivity suggest potential retroactive recognition. | No pleaded fact showing would-be marriage; Gurliacci controls. | Not pleaded; court did not consider retroactive exception; affirmed. |
Key Cases Cited
- Hopson v. St. Mary's Hospital, 176 Conn. 485 (1979) (recognition of loss of consortium between spouses due to negligence)
- Gurliacci v. Mayer, 218 Conn. 531 (1991) (no loss of consortium where no marriage at time of injury)
- Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (retroactivity considerations for same-sex marriage rights)
- Charron v. Amaral, 451 Mass. 767 (2008) (retroactivity of same-sex marriage recognition (Mass.))