Having made the mistake of signing up with townhall.com in an unsuccessful attempt to comment on one of their blogs, I've started to get e-mails telling me about the daily radio lineup. On Talk Radio Today -- "Mike Gallagher: Lesbians file a medical malpractice lawsuit; Ibrahim Hooper on CAIR; and dogs in Florida eating out with their owners." As I didn't think even Colorado showed sufficient animus toward homosexuals as to prohibit them from exercising their right to civil action, and therefore saw no reason why this should be news, I googled "lesbians medical malpractice." The first hit was a May 2004 Boston Globe article about a woman in Massachusetts who filed for loss of consortium the day after she married her longtime partner, whose doctors failed to order a biopsy for a lump that turned out to be breast cancer.
Their suit claims a form of damages known as "loss of consortium," a routine provision in malpractice law. It allows spouses, parents, and children to assert that they have lost affection, companionship, and support as a result of an injury to their relative. [...] Their 6-year-old daughter, Hannah -- Kalish's biological daughter, whom Charron has adopted -- is also a plaintiff in the case. She already has legal standing to file a "loss of consortium" claim, White-Lief said, because she is Charron's legal daughter.But that was an old story. The news arousing conservative talk radio's and many others' interest is a similar case arising under Connecticut's civil union law, with the main difference being that Connecticut's caselaw does not permit for a parent-child loss of consortium*. However, the tort "loss of consortium" is being framed quite differently for the current case than it was by the Globe for the older one.
The Fox News headline over an AP article is "Lesbians Sue, Say Cancer Treatments Damaged Sexual Relationship." (An outlet targeting gay readers headlined "Same sex couple files medical malpractice lawsuit" and cut the first paragraph of the AP piece so that it made no mention of their sex lives.) Another article begins with the sentence, "A lesbian couple filed a medical malpractice lawsuit Tuesday claiming botched cancer treatments damaged their love life," even though the subsequent direct quotes from the couple say nothing about their love life. Instead, they talk about how they had to move out of a home with stairs because the ill spouse couldn't manage them anymore, and had to hire cleaning help because she no longer could do the housework. Still another: "A lesbian couple is filing a medical malpractice lawsuit in Connecticut, claiming that an error in cancer treatments damaged not just one partner's health, but the couple's legally sanctioned sexual relationship."
Connecticut judges are less one-track minded than the press regarding the meaning of loss of consortium. "Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage. The ‘intangible’ components of consortium are the ‘constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.”” Shegog v. Zabrecky, 36 Conn. App. 737, 751 (1995).
Recent stories about opposite-sex spouses who file loss of consortium claims don't emphasize the sexual element. Most simply state the tort without explanation, but even an article that provided more detail used the language of the complaint instead of putting its own spin: "Lynn Rennich, the wife of Vincent Rennich, is suing Aztar for Loss of Consortium. 'As a direct and proximate result of defendant's negligence and other alleged wrongs... Lynn Rennich has been and will be deprived of the services, society, companionship and consortium of her husband.'" Even an article about a woman who sued her doctor for having sex with her while she was under sedation does not describe "loss of consortium" as being about her love life.
Of course, framing "loss of consortium" in terms of sex makes it more interesting. Yet it may not be even wholly historically accurate as a matter of English common law. Wikipedia claims that fathers could use the tort to sue men who courted their daughters outside marriage, for the fathers' loss of the daughters' household services. In Australia, where only husbands could sue under it, the legislature has considered replacing "loss of consortium" with "loss of capacity to do housework."
This strikes me as a better conception of what harm the law should address. Sexual relations or lack thereof between spouses should not be a matter of much concern for others, but harms that have a more quantifiable economic cost -- such as needing to change housing, pay for professionals to do what the injured spouse once did (which, in jurisdictions that prohibit prostitution, cannot include sex), devote time to caring for the injured spouse -- should be recognized legally as damage done to the non-injured spouse that cannot be fully captured by compensating the injured spouse only for the harm done to her individually.