Lesbian spouse files malpractice lawsuit

In what lawyers are calling the first case of its kind now that gay marriage is legal, a just-married lesbian couple filed a medical malpractice lawsuit in Worcester yesterday contending that one of the women should be awarded damages because doctors failed to detect breast cancer in her spouse.

The lawsuit was filed in Worcester Superior Court by Michelle Charron, 44, and Cindy Kalish, 39, who are married.

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.

Lawyers say the "loss of consortium" claim was not available to gay couples until Massachusetts legalized gay marriage on Monday. They add that the case also provides a glimpse into the kinds of legal battles Massachusetts courts can expect, following the Supreme Judicial Court decision that legalized gay marriage, as lawyers plumb the challenges of life -- injuries and hospitalizations, joint tax returns, and criminal trials -- that this newest group of spouses will experience.

"I think there will be tons and tons of incidental issues, and this apparently is the first one," said Steven Schreckinger, a tort lawyer at the Boston firm Palmer & Dodge.

Charron, and Kalish, 39, who were married in Worcester on Thursday, contend that two doctors affiliated with Fallon Clinic failed to order a biopsy for a lump in Charron's breast, which she first brought to their attention in December 2002. By the time a biopsy was performed nearly eight months later, they say, Charron's lump had grown from 4 to 10 centimeters, and she was diagnosed with Stage IV cancer that had spread to her sternum and liver. Doctors have said she has 10 years or less to live.

Rhian Gregory, a spokeswoman for Fallon Clinic, declined to comment on the case.

The Supreme Judicial Court has ruled that unmarried partners lack the standing to bring "loss of consortium" claims, said David White-Lief, a specialist in personal injury law and a former chairman of the Massachusetts Bar Association's civil litigation section. In a ruling from December 2003, two weeks after its decision to legalize gay marriage, the SJC ruled that a woman could not seek damages when her boyfriend was seriously injured, even though they had lived together for more than 10 years and their finances were intertwined.

Charron and Kalish's particular case might face a challenge over timing, Schreckinger said, since the alleged negligence occurred before the couple was married.

"The courts are going to have to grapple with the issue of whether they can assert claims for preexisting injuries," he said.

But the couple's lawyer, Ann Maguire, said she thinks the courts should view this case as an entirely different category, since Charron and Kalish, who started dating in 1990 and had a commitment ceremony when they moved in together in 1992, never had the chance to marry before this week.

On Monday morning, the day the Supreme Judicial Court decision took effect, the couple were seventh in line to apply for marriage licenses at Worcester City Hall. They were wed in a civil ceremony Thursday and plan a religious ceremony with a rabbi in August.

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.

Charron said she underwent chemotherapy and radiation treatment last fall, had a mastectomy in January, and has been undergoing chemotherapy that seems to be keeping her cancer from progressing, for now.

"It's a day-to-day thing," she said yesterday. "I've been doing pretty well, but I never know when that might change."