Medical malpractice lawsuit filed by The Leto Law Firm–Should legally married same-sex couple be able to assert claim?

Florida law does not allow same-sex marriage.  And Florida case law has consistently held that same-sex couples are not entitled to the same legal rights as traditional couples.  However, in more progressive states, there has been a trend to legalize same-sex marriage and allow people to decide freely who they can and cannot marry.  With marriage comes a great deal of legal entitlements such as tax benefits, estate planning benefits, health care surrogacy rights, and the right to pursue a claim in court when your spouse is either injured or killed by someone else’s negligence.

In a Florida medical malpractice case recently filed by The Leto Law Firm against a doctor in Lake County, Florida, we allege that a surgeon’s actions while performing hip replacement surgery caused serious and permanent injuries to our client, John Goldstein.  John Goldstein is legally married to man by the name of Sheldon Goldstein.  John and Sheldon were one of the first same-sex couples to enter into a legal marriage in Massachusetts when the state legalized same-sex marriage.  As a result of their legally recognized marriage, we assert that Sheldon should be entitled to the very same rights that any other spouse would be entitled to when their spouse is injured or killed due to someone else’s negligence.

However, despite the existence of a marriage license from one of the 50 United States of America, we anticipate that the defense will challenge Sheldon’s legal entitlement to collect for the loss of support and services of his husband.  Why would the defense challenge Sheldon’s legal rights as John’s husband?  The reason is the Defense of Marriage Act, otherwise known as DOMA.  DOMA was enacted under President Clinton and it defines marriage as a legal union between one man and one woman.  The effect of DOMA is that states, like Florida, are not required to recognize same-sex marriage even if that marriage was legally entered into in a sister state.   Because Florida does not recognize same-sex marriage, it will be very difficult for Sheldon to convince the Court that DOMA’s unconstitutionality should allow his claim to proceed.

John and Sheldon’s case is one in a long line of challenges to DOMA.  Historically, most cases challenging DOMA have been unsuccessful.  In Florida, in the case of Wilson v Ake, a same-sex couple sued the Attorney General of the United States, seeking to have DOMA overturned as unconstitutional under the Full Faith and Credit Clause and the Due Process Clause of the Constitution.  The Middle District dismissed the couple’s claim in 2005, holding that the right to marry a person of the same sex was not a fundamental right and that DOMA was not unconstitutional.

That was 2005.  Since that time, the federal courts have shown a trend away from DOMA, instead opting to provide same-sex couples with rights if they are legally married.  Gill v. Office of Personnel Management which held that DOMA violated the core constitutional principles of Equal Protection; Golinski v.  U.S. Office of Personnel Management which held that the definition of marriage as being between one man and one woman did not satisfy the heightened level of scrutiny provided by the Equal Protection Clause; and Windsor v. U.S. which held that DOMA violated the Equal Protection Clause.

Now that there is an apparent conflict between the federal courts and DOMA, the United States Supreme Court has agreed to hear argument as to the constitutionality of DOMA.  Oral argument is set for March 27, 2013 which means that before the end of this year, the U.S. Supreme Court will determine whether DOMA can remain on the books or whether states need to begin recognizing marriages of sister states.

In our case, John and Sheldon Goldstein are legally married under the laws of the State of Massachusetts.  Sheldon is seeking to enforce his rights as John’s husband by making a claim for damages in John’s Florida medical malpractice case.  While John and Sheldon know that the battle to be treated equally in Florida is an uphill battle, they believe it is a civil rights battle that must be fought.    As recently as 1967, this country did not force states to recognize interracial marriage.  It was not until the decision in Loving v. Virginia that the United States Supreme Court overturned the ban on interracial marriage.  Predicated on similar logic, John and Sheldon are hopeful that their case will be one of many that will successfully challenge DOMA and provide equal rights and protection to all people that choose to marry.  As was so eloquently stated by the Court in Loving v Virginia, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and to deny this right is “directly subversive of the principle of equality at the heart of the 14th Amendment.”

The Leto Law Firm is a Miami medical malpractice law firm that represents victims of medical malpractice, personal injury, wrongful death and traumatic brain injury throughout the State of Florida.