A same-sex couple whose loss of consortium claim in a medical malpractice suit was dismissed given they weren't considered married in Pennsylvania is seeking permission to appeal the ruling in light of the U.S. Supreme Court's recent DOMA decision.
Philadelphia Court of Common Pleas Judge Gregory E. Smith dismissed last month in a two-page order Tammy Wolf's loss of consortium claim, and status as a plaintiff, in her partner Jesseca Wolf's medical malpractice suit against Temple University Health System and other defendants. Temple Health had argued Tammy Wolf was not eligible for loss of consortium damages given such damages are reserved in Pennsylvania for married couples and people of the same sex can't be married in the state.
In a letter to Smith alerting him of the request to appeal, the Wolfs' attorney, Gavin Lentz of Bochetto & Lentz, said his clients were requesting certification of the issue for appeal "in light of the U.S. Supreme Court's decision in United States v. Windsor and the position recently taken on the issues of same-sex relationships by the Pennsylvania attorney general."
Pennsylvania Attorney General Kathleen Kane said in response to a recently filed federal suit challenging Pennsylvania's ban on same-sex marriage that she would not defend the law, which she views as unconstitutional.
In their petition for certification of an interlocutory appeal, the Wolfs also highlighted the lawsuit against Montgomery County Register of Wills D. Bruce Hanes, who has been sued by the state Department of Health for issuing more than 100 marriage licenses to same-sex couples. They argued an appellate ruling is needed in Pennsylvania to resolve the difference of opinion that exists between the state agency and Kane.
The Wolfs said Pennsylvania's law defining marriage as between one man and one woman is "antiquated," unconstitutional and should be changed. The petition described the Wolfs as co-habitating partners and common-law wives. The Wolfs also reiterated their earlier argument made in response to Temple Health's preliminary objections that loss of consortium law is evolving and should be expanded to include same-sex couples who hold themselves out as married even if they can't legally be married.
The Wolfs argued Windsor creates grounds for differences of opinion when it comes to the constitutionality of Pennsylvania's law. They said the law violates the equal protection clause of the state and federal constitutions and noted Smith's ruling raises issues of first impression.
"The principles of fairness and equity should permit a same-sex couple the right to pursue a loss of consortium claim and the time has come to stop discriminating against same-sex couples in this state," the Wolfs said in their petition.
Temple Health counsel Amalia V. Romanowicz of Post & Schell declined to comment on the filing. Lentz also declined to comment beyond the filing.
According to the complaint, 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.
Jesseca Wolf injured her left ankle in 2001. In November 2002, Temple Health doctors performed surgery on Wolf's ankle. During the procedure, and unbeknownst to Wolf until 2011, the doctors allegedly left a metal object under her skin before closing the surgical incision, according to the complaint.
Wolf underwent a second ankle surgery in September 2011 to remove the object and repair a tear of the tendon. According to the complaint, Wolf suffered significant pain and an altered gait, was unable to engage in normal activities she did prior to the surgery, incurred additional injuries and medical expenses and has had to undergo extensive rehabilitation.