A Philadelphia judge should extend the common-law loss of consortium claim enjoyed by married couples to same-sex couples who hold themselves out as married, plaintiffs in a medical malpractice action argued in a recent filing.

In their lawsuit against Temple University Health System, plaintiffs Jesseca and Tammy Wolf argued that because same-sex couples cannot get married in Pennsylvania, they should be allowed to bring a loss of consortium claim for an injury to their partner with whom they share what amounts to a marital relationship.

"This is a rational expansion of existing law and is consistent with the current trend in the law, locally, state and nationally," the Wolfs said in their response to Temple’s preliminary objections.

Temple had reproduced in its preliminary objections motion Pennsylvania’s law defining marriage as between one man and one woman. It further noted that, contrary to the Wolfs’ suggestion, the current trend is to dismiss an action for loss of consortium in situations of "nonmarital cohabitation."

"Since plaintiffs herein were not married at any relevant time, and a marriage between persons of the same sex is not recognized in Pennsylvania, Tammy Wolf’s loss of consortium claim must be dismissed with prejudice as noncognizable under Pennsylvania law," Temple had said in its filing.

In their response, the Wolfs acknowledged that loss of consortium claims have typically been reserved for married couples, citing one case in which a fiance was denied the ability to file a loss of consortium claim for an injury to his soon-to-be wife that occurred on the day of their wedding. But the women disputed Temple’s assertion that the trend nationally is to deny same-sex couples such benefits.

The Wolfs cited the several states that have recently allowed for gay marriage or civil unions, a proposed Pennsylvania House bill that would create civil unions in the state and a gay rights bill recently signed by Philadelphia Mayor Michael A. Nutter providing tax credits to companies that offer health care coverage to same-sex couples.

"Clearly the current trend in the law is to provide benefits to same-sex couples in a committed ‘marital relationship,’" the Wolfs said.

According to the complaint in Wolf v. Associates of Podiatric Medicine and Surgery, filed March 8 in the Philadelphia Court of Common Pleas, Tammy Wolf shares responsibilities with Jesseca Wolf for child-rearing, payment of expenses, maintaining a household, assisting one another and comforting one another — things the complaint says the couple has done for more than 10 years.

Jesseca Wolf is the mother of twins who have been raised by Jesseca and Tammy Wolf together, according to the complaint.

In their response to the preliminary objections, the Wolfs said they have held themselves out as a married couple and have the reputation of being married. They have lived together since 1998. They exchanged matching rings in 2004 and executed a declaration of domestic partnership in 2007, according to their filing.

The Wolfs’ attorney, Gavin P. Lentz of Bochetto & Lentz, said at the time the complaint was filed that his clients could make the argument that they had a common-law marriage before common-law marriages were abolished in Pennsylvania. But Lentz said attorneys, including himself, have wrongly focused on that issue in these types of cases.

"The new battle is the equal protection argument," he had said.

Lentz had said that regardless of the sex of the couple, courts should look at whether the pair exists in a close, familial relationship that would warrant a loss of consortium claim.

In their latest filing, the Wolfs noted the evolution of the loss of consortium claim to bolster their argument that it should continue to evolve. They said the common-law jurisprudence is a living doctrine subject to societal changes.

"Indeed, the right to recover for a loss of consortium springs from the English common law and was once solely extended to a husband only for the loss of services of his wife, who was considered to be her husband’s chattel, his property," the Wolfs said.

The Wolfs said that, under the definition of consortium, there is no doubt same-sex couples can be deprived of the consortium of their partner. The question, they said, is just whether the loss should be compensated when a marital relationship has been established.

"Irrespective of the label placed upon a particular relationship, it is a jury question whether the close interpersonal bonds upon which the cause of action is based actually exist," the Wolfs said. "This will not open a floodgate of litigation but rather will limit consortium cases to couples who can establish their relationship is so close, it is the ‘functional equivalent’ of marriage."

The Wolfs sued Temple and other related defendants after it was discovered a metal object was left in Jesseca Wolf’s foot after surgery. Amalia V. Romanowicz of Post & Schell is representing Temple. Neither she nor Lentz commented for the article.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.