Vanderbilt Law Review


Paul D. Fancher

First Page



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.8 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."'

Two main factors have brought this issue before the courts in the last ten years. First, toxic tort litigation has become more frequent in recent years.' The latency period for injuries caused by toxic sub- stances can range from a few years to more than one generation. A person exposed to a toxic substance may not discover the resulting injury until after marriage because of these long latency periods.

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