Meghan Freed
Meghan Freed ()

When all is said and done it could very well go down as the most influential loss-of-consortium case Connecticut has ever seen.

The statute is reserved for the uninjured spouses of those badly hurt because of someone else’s negligence. But what about the spouse that couldn’t be?

A partner in a same-sex couple, Charlotte Stacey, sought loss-of-consortium damages in the same medical malpractice case that saw the estate of her deceased partner, Margaret Mueller, collect $2.45 million.

The trial court and then the state Appellate Court, however, said that the couple had to be married at the time of the malpractice in 2004, so a loss of consortium was unavailable to her.

But in a state Supreme Court ruling that gay rights supporters call the first of its kind in the country, Stacey will be given the opportunity to make a claim for loss-of-consortium damages as long as her lawyers can prove the couple would have been married had state law allowed it then.

“This sets Connecticut apart amongst the other states who have enacted same-sex marriage,” said Sean McElligott, one of the lawyers for Stacey and Mueller’s estate.

Connecticut in 2008 became the second state after Massachusetts to approve gay marriage, as part of the state Supreme Court’s ruling in Kerrigan v. Commissioner of Public Health. Same-sex marriage is now legal in 19 states and the District of Columbia.

Massachusetts is the only other state where a case with a similar set of circumstances was decided. That state’s highest court ruled in 2008 against a lesbian widow seeking to sue for loss of companionship.

McElligott admitted he was nervous about this case because of the ruling in Massachusetts, which he said seemed to play a key role in the decision.

The Connecticut case will now go back to Stamford Superior Court where a jury could ultimately decide the extent of Stacey’s loss-of-consortium damages. McElligott said it would mark the first time in the state such a loss-of-consortium hearing will take place separate from the actual trial that gave rise to the main verdict.

McElligott, who is handling the case with Joshua Koskoff, both of Koskoff, Koskoff & Bieder, must prove that Stacey and Mueller would have been a married same-sex couple had Connecticut allowed it at the time of the malpractice.

“It will be the easiest thing I’ve ever had to prove as a lawyer,” said McElligott. He noted that in 2005 when the state approved civil unions, the couple signed on within 40 days. He said the couple had participated in same-sex marriage marches since the 1990s.

“They had a commitment ceremony before marriage was available,” said McElligott. “After Kerrigan, they got married even though Marge 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.”

In 2001, Dr. Iris Wertheim diagnosed Mueller as having ovarian cancer and performed a surgical procedure that involved cutting out the tumor’s cells. The cells are then studied under a microscope to determine the specific type of cancer.

The pathology report stated that Mueller had cancer of the appendix, but Wertheim stuck with her original ovarian cancer diagnosis and continued to treat her patient with chemotherapy cycles for nearly four years.

Wertheim sought out the opinion of another doctor, Isidore Tepler, as well as the Stamford Hospital Tumor Board, which consists of oncologists, pathologists and other types of physicians. They all backed Wertheim’s diagnosis.

In total, Mueller battled through 24 cycles of chemotherapy with little improvement to her condition. Growing desperate, she sought out a different oncologist to ask about other treatment options.

The new doctor revealed that Mueller didn’t have ovarian cancer. She had been misdiagnosed and actually did have cancer of the appendix. Then the doctor broke even sadder news: the cancer was too far along to be treated and Mueller wouldn’t survive. She died in 2009 at age 62.

Mueller’s estate sued her original doctor for medical malpractice and won. In 2010, a Stamford jury awarded her $2.45 million.

It was then that Stacey’s attempt at a loss-of-consortium claim failed at both the trial court and state Appellate Court. Still determined, she asked the state’s high court to look at her case. Interestingly, the medical malpractice suit had been filed prior to the Kerrigan case that was resolved six years sooner.

The justices, in their 6-0 ruling, went against the trial court and Appellate Court rulings, as well as the Massachusetts ruling that denied loss of consortium for a same-sex couple.

“Society has come to accept the view that committed same-sex couples … are entitled to the same social and legal recognition as committed opposite sex couples,” Rogers wrote.

Eric Stockman, of Neubert, Pepe & Monteith, represents Mueller’s doctor in the malpractice case. Stockman argued that Kerrigan granted same-sex couples the right to choose to be married after a specific date but never stated that people in same-sex, committed relationships would be considered married before they obtained a marriage license.

“My client, Dr. Wertheim, was very close with the patient and her partner and fully supported and honored their relationship,” said Stockman. “The motions that we filed and the appeal that we made had nothing to do with the propriety of same-sex marriage. It was absolutely about the precedent that existed in Connecticut and limiting damages to what was available at the time the lawsuit was filed.”

Lawyers in the case agreed the court ruled on an important issue, but said the decision likely won’t affect many other cases because gay marriage has been legal in the state for six years and the statute of limitations on civil claims is two years.

Stockman, though, said he could foresee a scenario where a same-sex couple brings suit in Connecticut due to an accident while visiting or traveling through here but was from another state that does not allow same-sex marriage. Would this decision apply in that situation if they can prove they would be married but for their state’s laws?

Meghan Freed, a Hartford lawyer who vice chairs the Connecticut Bar Association’s LGBT Section, agreed that the loss-of-consortium ruling would impact a fairly limited group of state residents, especially since Connecticut same-sex couples married already have the right to maintain loss-of-consortium claims.

“That said, despite the likely limited size of the group of potential plaintiffs following the Mueller decision, it is a progressive ruling in that it gives retroactive rights to same-sex couples who were denied the right to marry.”•