Vanderbilt Law Review

Article Title

To Have and Not Hold: Applying the Discovery Rule to Loss of Consortium Claims Stemming from Premarital, Latent Injuries


Paul D. Fancher


It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if... the rule simply persists from blind imitation of the past. Joel Friedman had a slow growing tumor on his thoracic spine. Unfortunately, his doctors negligently failed to diagnose or treat it. Joel then married his wife, Jihane, with whom he initially had a fulfilling physical relationship.! As his illness progressed, however, Joel began experiencing erectile dysfunction.' Ultimately, he became completely impotent. When later testing disclosed Joel's undiagnosed tumor, the Friedmans became aware of their cause of action for medical malpractice. Fortunately, our legal system provides some redress to Joel. The discovery rule protects his claim from the statute of limitations. Joel, however, is not the only victim in this case. His wife, Jihane, has also suffered and will continue to face a significant loss of consortium due to the malpractice of her husband's physicians.

Unlike Joel, Jihane does not have a cause of action against the physicians in a majority of courts today." As a rule, courts hold that marriage at the time of injury is a prerequisite for bringing a loss of consortium claim." Although a physically injured victim is able to employ the discovery rule to bring the underlying claim of malpractice, most jurisdictions do not allow the deprived spouse' to use the discovery rule to circumvent the marriage requirement in bringing a loss of consortium claim. A growing minority of courts, however, allows the deprived spouse to use the discovery rule when the physically injured spouse's injuries have manifested only after the marriage."'