Maine Refuses to Recognize a Cause of Action for Loss of Parental Consortium: Durepo v. Fishman

In Durepo v. Fishman, two minor children filed suit to recover for the loss of parental consortium resulting from injuries allegedly suffered by their mother when she was negligently treated by a physician. The defendant moved to dismiss the claim for failure to state a claim upon which relief can be granted. The trial court granted the motion, and the plaintiffs appealed to the Supreme Judicial Court of Maine, sitting as the Law Court. The case invited the Law Court to declare for the first time in Maine whether a minor child should possess an independent right of action for loss of parental consortium against a third person who negligently causes physical injury to a parent. The Law Court declined that invitation and deferred to the Legislature for consideration of the public policy issues involved in this proposed extension of tort liability. The question now becomes: what should the Legislature do? This Note considers whether the Legislature should statutorily adopt a right of action for loss of parental consortium. The Note reviews the development of the claim for loss of consortium, tracing it from its origin in the property rights of men to the modern view which stresses relational interests in care, comfort, society, and companionship. Analysis of contemporary rulings and approaches with respect to parental consortium demonstrates the growth of a small but significant minority viewpoint recognizing the cause of action denied by the Law Court in Durepo. After weighing the variety of considerations on each side of the issue, this Note concludes that the Maine Legislature should indeed exercise its lawmaking power in order to create a right of action for loss of parental consortium.