In a typical medical malpractice case, the patient is the plaintiff, seeking a remedy for the injury caused by the doctor’s negligence.


There’s a second type of claim – loss of consortium. Many laypeople narrowly interpret “loss of consortium” as an injury experienced by the patient’s spouse in not being able to enagage in and enjoy sexual relations. But, “loss of consortium” is much broader. It applies to deprivation of benefits of a family relationship.


The availability and extent of loss of consortium varies among different jurisdictions. Some jurisdictions only recognize spousal consortium. Others recognize parental consortium – love and affection allowing parents to recover for death or disability of their children – and vice versa.


Which brings us to Pennsylvania.


In Pennsylvania, as I write, the ACLU is challenging the state ban on same-sex marriages. In addition, Attorney General Kathleen Kane promised not to defend the state’s same sex marriage ban in opposing a decision by a Montgomery County official’s decision to grant two same sex couples marriage licenses.


Tammy and Jesseca Wolf is a same-sex couple living together since 1998. They exchanged matching rings in 2004. They executed a declaration of domestic partnership in 2007. Jesseca Wolf is also the mother of twins the couple is raising together.


Jesseca is suing Temple University Health System related to podiatric surgery. She claims a metal object was left in her foot post-surgery. In addition to the typical medical negligence claims for damages, a loss of consortium claim was filed. In their complaint, the Wolfs argued that denying Tammy Wolf’s loss of consortium claim based on her gender would violate the Pennsylvania Constitution’s right to equal protection.


A Philadelphia judge threw out the loss of consortium claim. The legal justification: Because the plaintiffs were not married at the relevant time (as Pennsylvania does not currently recognize same sex marriages).


Widener University School of Law professor John Culhane said the ruling was expected as the judge is bound by the law established by the state’s higher courts. There was no precedent in Pennsylvania allowing same sex couples to make loss of consortium claims. He continued: “Here the issue is not really so much same-sex versus opposite sex. The issue is married versus not married.”


It remains to be seen if the case will follow the existing ACLU case (on the state constitutionality of same sex marriage) into appellate land. Stay tuned.