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Trombley v. Starr-Wood Cardiac Group6/16/2000
priving unmarried persons of compensation for injuries in tort no more advances the state's interest in marriage than would restrictions on their acquisition of housing or credit. The trend . . . is toward removing legal distinctions based on marital status that serve only to burden the unmarried without advancing some corresponding societal interest.
Whether spousal consortium claims should be extended to unmarried cohabitants as a general matter is not an easy issue to resolve. There are reasonable arguments on both sides. But we need not resolve that issue here, for in this case one of the cohabitants was married. Here, if we were to accept appellants' argument, there would be a real possibility that two spouses, one legal, the other de facto, would have valid consortium claims. In this circumstance we believe that the reasons not to recognize consortium claims of unmarried cohabitants expressed by the majority in Elden are magnified and clearly counsel against departure from the rule that legal marriage is a requirement for spousal consortium claims.
For these reasons we conclude that the superior court did not err in granting summary judgment in favor of appellees with respect to Dale Trombley's loss of consortium claim.
D. We Do Not Resolve the Sweet Issue.
Relying on our decision in Sweet v. Sisters of Providence in Washington, Trombley claims that the trial court erred because it failed to address whether the operative notes were so inadequate as to hinder her ability to prove her case. The defendants argue that Trombley did not raise this claim until her motion for reconsideration.
Because we are remanding this case for a new trial on the merits, we do not resolve the question of whether the request for a Sweet determination was untimely. On remand, based on a timely request, the findings required by Sweet can be made.
E. The Trial Court Erred in Granting Summary Judgment on the Informed Consent Issue.
Trombley's informed consent claim is based on the doctors' decision to harvest a vein from her right leg rather than her left. Trombley told her doctors that she did not want a vein harvested from her right leg because of her history of phlebitis. The doctors agreed to harvest a vein from her left leg. At no time did the doctors discuss with her the possibility of harvesting a vein from the right leg. Dr. Ahmad explained that he decided to harvest from her right leg despite the history of phlebitis because the operating room was set up for a right leg harvest. Dr. Ahmad acknowledged that Trombley's consent to a right leg harvest should have been obtained. But he also testified that he had not been told of Trombley's wishes concerning harvesting only from the left leg, and there was no chart note to that effect.
"The informed consent claim is based on the principle that every human being of adult years and sound mind has a right to determine what shall be done to his or her own body." Trombley thus had a right to insist that her right leg not be used as a harvest site. If her right leg was used in the absence of her actual or implied consent, a battery may have been committed for which she may be entitled to actual, or nominal, damages.
Although Trombley pled a failure to obtain informed consent claim in her second amended complaint and alleged in detail the facts concerning her insistence that the left rather than the right leg be used as the donor site of the vein, the defendants' motions for summary judgment do not separately deal with her informed consent claim. The defendants' primary argument is that Trombley's experts did not establish that the defendants' conduct fell below the appli
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