Facts
- In 1972, Mary Ann Turner was hospitalized for a posterior repair of a rectocele and perineal ulcer following childbirth.
- Turner alleged that, without her knowledge or consent, a second genital procedure was performed: removal of the clitoral prepuce (described as a form of female circumcision).
- Hospital records indicated that the surgeon, Dr. Anthony B. Leggio (deceased by trial), removed the clitoral prepuce during the operation and also performed a D&C and the planned posterior repair.
- Turner signed a written consent form, but it did not reference any circumcision-type procedure.
- Turner testified she suffered months of severe postoperative pain, was heavily sedated by her then-husband, Dr. Alan J. Ostrowe (an anesthesiologist), and later experienced altered clitoral sensation, pain, reduced sexual pleasure, and serious emotional distress upon learning what occurred.
- Turner claimed she discovered in May or June 1988 that the circumcision-type procedure had been performed at Ostrowe’s request.
- Ostrowe contended Turner agreed to the procedure after discussion aimed at improving their sexual relationship; he admitted discussing the procedure with Leggio, giving Turner sedatives, and being present in the operating room.
- At a 2001 bench trial, Dr. Karl Pizzolatto (who assisted in 1972) testified that Leggio said the procedure was done “as a favor” to Ostrowe and that Turner was unaware of it; Ostrowe objected on hearsay grounds.
- The trial court found Ostrowe liable (treating the conduct as a civil battery accomplished through conspiracy) and awarded Turner $35,000 in general damages.
Issues
- Whether the evidence supported the finding that Turner did not consent to the circumcision-type procedure and that Ostrowe was liable for a civil battery based on conspiracy with Leggio.
- Whether the trial court erred in admitting Pizzolatto’s testimony recounting Leggio’s statements under the co-conspirator exception to the hearsay rule.
- Whether the $35,000 general-damages award was abusively low.
Decision
- The court of appeal affirmed the trial court’s liability finding that Turner did not consent to the procedure and that Ostrowe was liable based on conspiracy and civil battery.
- The court of appeal upheld admission of Leggio’s statements through Pizzolatto as co-conspirator statements after finding a prima facie showing of conspiracy.
- The court of appeal amended the judgment to increase general damages and affirmed as amended.
Legal Principles
- A surgical procedure performed without a patient’s knowledge or informed consent may constitute a civil battery, particularly when it is invasive and not disclosed in the consent documentation.
- A civil conspiracy may be proven by circumstantial evidence showing coordinated action toward an unlawful purpose; a conspirator may be liable for resulting tort damages even if another participant performed the act.
- Once a prima facie conspiracy is shown, a co-conspirator’s statements made in furtherance of the conspiracy may be admitted against another conspirator as an exception to hearsay.
- Appellate review of general damages is deferential, but an award may be increased when it is abusively low in light of the severity and duration of proven physical and psychological injuries.
Conclusion
The court upheld a finding that a nonconsensual circumcision-type procedure performed during surgery constituted a civil battery for which the former husband was liable through conspiracy, affirmed admission of co-conspirator statements, and increased the general-damages award as insufficient.