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Married lesbian couple files lawsuit over cancer

/ Source: The Associated Press

One day after getting married, a lesbian couple filed a medical malpractice lawsuit asking that one of the women receive damages because doctors failed to detect breast cancer in her spouse.

The lawsuit filed Friday claims “loss of consortium” for Cindy Kalish, 39, because of the advanced breast cancer in new wife Michelle Charron, 44.

Loss of consortium is a legal claim long available to spouses, but only newly available to gay and lesbian couples since the state began allowing same-sex marriage Monday. The lawsuit provides a glimpse into the kinds of legal battles involving gay and lesbian unions that Massachusetts courts can now expect.

“I think there will be tons and tons of incidental issues, and this apparently is the first one,” said Boston lawyer Steven Schreckinger.

Charron and Kalish were seventh in line on Monday to apply for a wedding license, and were married Thursday. The lawsuit contends 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 the biopsy was performed nearly eight months later, Charron’s lump had grown and she was diagnosed with advanced cancer that had spread to her liver and sternum. Doctors have given her 10 years to live.

A spokeswoman for Fallon Clinic declined to comment on the case.

The Supreme Judicial Court has ruled that unmarried partners cannot bring lack 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.

Schreckinger said the lawsuit’s timing could be challenged, because the alleged negligence was before the couple was married. But the couple’s lawyer, Ann Maguire, said the court will view the case differently because marriage was not an option before Monday. The couple had a commitment ceremony in 1992.