California court considers gay man's legal standing in suit over partner's death

By Advocate.com Editors

Originally published on Advocate.com February 22 2003 12:00 AM ET

In the second wrongful-death suit filed in California by a same-sex domestic partner, Advocate.com columnist and radio personality Charles Karel Bouley II said Thursday that he expects a Long Beach, Calif., superior court judge to dismiss his claim against a local hospital for the death of his longtime partner, according to NBC4.tv.

Bouley's case follows the groundbreaking suit by Sharon Smith over the dog-mauling death of her partner, Diane Alexis Whipple, in San Francisco in January 2001. After a state court ruled that Smith's claim should go to trial in 2002, Smith settled the case.

Bouley's suit claims that his partner, Andrew Howard, died as a result of negligence on the part of the Long Beach Memorial Medical Center on May 21, 2001. Howard had an undetected blood clot, which led to a fatal heart attack.

"Andrew's cries of chest pain allegedly went unheeded in the [emergency room]," Bouley said. "He was young, in great shape, and I believe that worked against him in the ER. He lost his life because his cries for help went ignored."

Bouley is suing the hospital under California Assembly Bill 25, which gives domestic partners the same rights as married spouses when asserting wrongful death claims. Smith had testified during hearings on the bill, which passed after Howard's death. Bouley and Howard signed a domestic-partnership agreement three months before Howard died, and Bouley's lawyers argue that A.B. 25 includes a provision to allow claims for deaths that occurred as early as 1993.

The hospital's attorneys claim the law was not in effect when Howard died and that Bouley and Howard's domestic-partnership registration had not been processed by the state while Howard was still alive and thus Bouley has no legal standing. Bouley contends that the hospital is trying to ignore the relationship he had with Howard in order to reduce the amount of damages they might have to pay in a malpractice suit. "A spouse or domestic partner can recover more than parents. It's all about money," he said.

If his claim is indeed dismissed, Bouley said, he will have his lawyers amend the complaint to add him as a spouse instead of a domestic partner--the tact Sharon Smith took in her successful litigation. Howard's parents also are suing the hospital, claiming it was negligent in diagnosing their son's condition. Their claim will not be affected by Thursday's decision.