Philadelphia Judge Strikes Loss of Consortium Claim Raised by Same-Sex Couple

In an order issued July 25, 2013, a Philadelphia County Court of Common Pleas judge dismissed a loss of consortium claim raised in a medical malpractice case by a same-sex couple.

The underlying case of Wolf v. Associates of Podiatric Medicine and Surgery was based on damages sustained after a metal object was left in a patient’s foot after surgery. The patient subsequently filed suit with her female partner, who set forth a claim for loss of consortium as a co-plaintiff.

Defense counsel filed preliminary objections, stating that under Pennsylvania law, a loss of consortium claim may only be brought by an individual who is married to the injured plaintiff. According to the defendants, this has been a strict rule throughout Pennsylvania precedent, as courts have traditionally dismissed claims arising out of “nonmarital cohabitation.” Since Pennsylvania law does not currently recognize marriage between same-sex couples, the defendants argued that the co-plaintiffs were not actually married, and that the loss of consortium claim was therefore invalid. While the plaintiffs argued that the consortium plaintiff, much like a married spouse, shared many of the household responsibilities such as child-rearing, payment of expenses, and assisting and comforting her partner, the court concurred with the defendants’ analysis and dismissed the loss of consortium claim.

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