Briggs v. Julia L. Butterfield Memorial Hospital

104 A.D.2d 626, 479 N.Y.S.2d 758, 1984 N.Y. App. Div. LEXIS 20054

Opinions

— In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from two orders of the Supreme Court, Dutchess County (Martin, J.), both entered March 29, 1983, which granted the defendants’ motions to dismiss the plaintiff Thomas Briggs’ fourth cause of action for loss of consortium.

Orders affirmed, with one bill of costs payable to Giampe, O’Daley and Wolfe, P. C., M.L. Giampe, M.D. and Lewis Wolfe, M.D.

On or about June 5, 1979, defendant doctors Giampe and Wolfe performed a tubal ligation on plaintiff Allison Briggs. It is alleged that, during the course of the operation, they negligently punctured plaintiff Allison Briggs’ iliac vessel, causing her to go into cardiac arrest and to suffer severe and permanent injuries.

Plaintiffs commenced this action against the doctors and hospital by service of a summons and verified complaint on January 21, 1981. As a fourth cause of action, plaintiff Thomas Briggs sought recovery for loss of services and/or consortium. The complaint alleged that “[a]t all times hereinafter mentioned, the plaintiff, thomas briggs was and still is the lawful husband of the plaintiff, allison briggs”. However, during Allison Briggs’ pretrial examination, she stated that she and Thomas Briggs were not married until October 14, 1981.

The essence of recovery for loss of services is to compensate for the loss of such elements as “love, companionship, affection, society, sexual relations, solace and more” (Millington v Southeastern Elevator Co., 22 NY2d 498, 502).

An action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the actionable conduct (Rademacher v Torbensen, 257 App Div 91; Miller v Davis, 107 Misc 2d 343). We note that in virtually every jurisdiction of the United States, a lawful marriage at the time the claim arises is a prerequisite to recovery for loss of services (see, e.g., Weaver v Searle & Co., 558 F Supp 720; Laws v Griep, 332 NW2d 339 [Iowa]; Tremblay v Carter, 390 So 2d 816 [Fla App]; Sostock v Reiss, 92 Ill App 3d 200; Angelet v Shivar, 602 SW2d 185 [Ky]).

Accordingly, the cause of action for loss of consortium was properly dismissed. O’Connor, J. P., Boyers and Fiber, JJ., concur.