Turner v. OstroweTurner v. Ostrowe
In this appeal of a judgment in her favor, Mary Ann Turner contends the trial court‘s $35,000 general damage award for her physical and psychological injuries is abusively low. Her ex-husband, Dr. Alan J. Ostrowe, against whom the judgment was rendered, also appealed, claiming the trial court‘s judgment in favor of Turner is legally and manifestly erroneous. We amend the judgment and affirm as amended.
FACTUAL AND PROCEDURAL BACKGROUND
This is a factually unusual, legally challenging, and emotionally charged case with a long history dating back to an event that occurred in 1972. Turner claims in this lawsuit that in 1972, her then-husband, Dr. Alan J. Ostrowe, an anesthesiologist, conspired with another Baton Rouge physician, Dr. Anthony B. Leggio, an obstetrician/gynecologist, to have a surgical procedure performed on her without her knowledge or consent. This procedure, sometimes called female circumcision, consists of the removal of the clitoral prepuce, which is the flap of skin that partially covers and protects the clitoris.3
On October 20, 1989, Ostrowe filed a peremptory exception raising the objection of prescription. After years of discovery alternating with stretches of inactivity, the exception was eventually tried; it was overruled on October 21, 1994. A motion for summary judgment filed by Ostrowe and opposed by Turner was denied December 5, 1994. In April 1996, Ostrowe filed a “motion for new trial” on the prescription issue, claiming new facts bearing on this issue had been discovered. The prescription exception was referred to the merits, and on October 17, 1996, this court denied Turner‘s writ application contesting that ruling.5 A jury trial commenced October 29, 1996, but ended in a mistrial on October 31, 1996. Ultimately, the parties agreed to a bench trial, which was held in March 2001.
In extensive written reasons, the trial court ruled in favor of Turner, finding that Ostrowe had been instrumental in having the female circumcision performed on her, that she did not learn about this surgery until 1988, and that her failure to discover the condition was reasonable. A judgment was signed April 6, 2001, awarding her $35,000 in general damages, plus interest from date of judicial demand and court costs.6 Both parties filed motions for new trial, both of which were denied. Turner then appealed the quantum of the damage award, claiming the trial court applied a legally incorrect standard in making the award and that it was an abuse of discretion.
STANDARD OF REVIEW
The appellate court‘s review of factual findings is governed by the manifest error—clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court‘s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court‘s factual finding only if, after reviewing the record in its entirety, it determines the trial court‘s finding was clearly wrong. See Stobart v. State, through Dep‘t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on the credibility of witnesses, the fact finder‘s decision to credit a witness‘s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder‘s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882. Where there are two permissible views of the evidence, the fact finder‘s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.
A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court‘s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735.
Generally, the trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 476-77, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.
Much discretion is left to the judge or jury in the assessment of general damages.
ANALYSIS
Dr. Leggio‘s Statements to Dr. Pizzolatto
We address first Ostrowe‘s assignment of error claiming the trial court committed reversible error when it allowed into the record the “clear hearsay” testimony of Dr. Karl Pizzolatto, in which he recounted a comment allegedly made to him by Dr. Leggio.7 Dr. Pizzolatto assisted Dr. Leggio in performing the 1972 surgery on Turner.8 Dr. Pizzolatto testified that while he and Dr. Leggio were in the surgical suite and after the posterior repair was finished, Dr. Leggio whispered to him that there was an additional procedure to be done and described the female circumcision. When Dr. Pizzolatto asked why such an unusual procedure was being performed, Dr. Leggio purportedly responded that he was doing it as a favor to Ostrowe and that Turner did not know about it. Ostrowe objected to this entire line of testimony as hearsay and it was proffered.
However, on cross examination of Dr. Pizzolatto, Ostrowe‘s attorney initiated the following colloquy:
Q Do you have any evidence, by the way, do you yourself, Dr. Pizzolatto, have any knowledge at all that Dr. Leggio kept this a secret from Mary Ann Turner?
A Yes, I do.
Q That Dr. Leggio kept it a secret?
A Yes.
Q What is your testimony?
A He said to me when we discussed this case that Dr. Ostrowe wanted this done because Mary Ann wasn‘t sensitive enough sexually, and Mary Ann didn‘t know it was being done.
When hearsay evidence is not timely objected to, it becomes competent evidence and may be considered as any other admissible evidence. State v. Marcal, 388 So.2d 656, 660-61 (La.1980), cert. denied, 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981). Although Ostrowe‘s counsel objected to any and all of Dr. Pizzolatto‘s testimony on direct examination concerning statements made to him by Dr. Leggio, resulting in those statements being preserved as a proffer, on cross examination, Ostrowe‘s attorney elicited this same testimony from Dr. Pizzolatto and expanded on it. We are inclined to affirm the trial court‘s evidentiary ruling on this basis alone. However, there was obviously some confusion about whether the cross examination was also considered part of the proffer, so we will examine the legal basis for the trial court‘s ruling.
The trial court based its ruling on Louisiana Code of Evidence article 801(D)(3)(b). Under that provision, a statement is not hearsay if it is offered against a party and is made by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy,
A prima facie case of conspiracy is presented when evidence is introduced which, if unrebutted, would be sufficient to establish the facts of the conspiracy. State v. Nall, 439 So.2d 420, 425 (La.1983). Statements made by co-conspirators, which are the object of the hearsay objection, may be considered by the trial court in making its determination as to whether a prima facie case of conspiracy has been established. State v. Lobato, 603 So.2d 739, 746 (La. 1992). A trial court‘s determination as to the admissibility of such evidence will not be overturned absent clear error. Lobato, 603 So.2d at 747.
Our evaluation of the record reveals considerable evidence supporting the prima facie case of conspiracy between Ostrowe and Dr. Leggio. Ostrowe admitted that after he read an article about female circumcision as a means of enhancing a woman‘s sexual response, he became interested in having this procedure done on his wife for that purpose. He also admitted recommending to his wife that she go to Dr. Leggio for the posterior repair that Ostrowe thought she needed after the birth of their third child. Ostrowe further acknowledged that before his wife saw Dr. Leggio, he discussed with Dr. Leggio the possibility of performing a female circumcision on his wife. Of course, Ostrowe also said he and Turner jointly agreed that she would undergo the procedure; Turner denies ever discussing it with him or Dr. Leggio. Turner recalled that during her only office examination by Dr. Leggio before the surgery, he made a brief mention that she may have some excess tissue covering the clitoris, but did not suggest removing it and did not discuss it further, recommending only the posterior repair and D & C.9
The consent for surgery that Turner signed did not describe any of the procedures to be performed. Ostrowe admitted giving her pre-operative sedatives. Although in a deposition Ostrowe denied six times that he was present in the operating room or even in the hospital during the surgery, Ostrowe admitted at trial, and Dr. Pizzolatto confirmed, that he was in the operating room next to the operating table while the surgery, including the female circumcision, was performed. The hospital charts from Turner‘s nine-day post-operative hospitalization show that Dr. Leggio left orders that Ostrowe could prescribe or administer medications to his wife. The medications given her during this period were described by other doctors who testified as heavy doses of sedatives and pain killers. Although Ostrowe denied administering any drugs to Turner in the hospital, Dr. Pizzolatto testified that he twice saw Ostrowe injecting his wife with valium. These injections do not appear on the hospital record. The removal of the clitoral prepuce also does not appear anywhere in the hospital records until three months following the surgery when the complete operative notes and progress notes were dictated for the record by Dr. Leggio. As Dr. Pizzolatto noted concerning this, “If you want to keep it a secret, you dictate it
Turner said because she thought Dr. Leggio must have “botched” the posterior repair somehow, she did not return to him. Almost a year later, she went to a different obstetrician/gynecologist, Dr. Robert DiBenedetto, and complained to him about continuing pain in the vaginal area, especially during sexual intercourse. He purportedly told her there was nothing wrong with her physically, and she should relax, drink wine, and “think exotic thoughts” in order to enjoy sexual activity. Dr. DiBenedetto‘s testimony from the first trial is in the record;10 he said she complained of dyspareunia, painful intercourse, and he examined her looking for a specific cause of that problem. But he said he knew only about the posterior repair that had been done and nothing about a circumcision of the clitoris, and did not find vaginal scar tissue or anything that could have caused her problem. Dr. DiBenedetto said Turner was unaware of the female circumcision, and so was he, until many years later when she told him what she had learned from Dr. Pizzolatto. Dr. Pizzolatto, Turner, and Turner‘s close friend, Lori Radzikowski, testified that when Dr. Pizzolatto told Turner about the female circumcision in 1988, her reaction was obvious shock, dismay, and near-hysteria. Dr. Pizzolatto said that although he knew Turner did not know about the female circumcision when it was done in 1972, he had assumed that in the intervening years, she had found out about it. He said he regretted that his comments in 1988 had “let the cat out of the bag” after so many years and caused her so much distress.
The cumulative effect of this evidence suffices to establish a prima facie case that Ostrowe and Dr. Leggio conspired to perform a female circumcision on Turner without her knowledge or consent, which is a civil battery.11 The statements made by Dr. Leggio to Dr. Pizzolatto during and after the surgical procedure were in furtherance of that conspiracy, in that Dr. Pizzolatto was assisting in the surgery. Also, by telling Dr. Pizzolatto that Turner did not know of the female circumcision, the clear implication was that Dr. Pizzolatto should join Dr. Leggio and Ostrowe in keeping the matter secret from her. Therefore, the trial court did not abuse its discretion in allowing Dr. Pizzolatto to testify about what Dr. Leggio told him concerning the female circumcision, Ostrowe‘s part in having it done, and Turner‘s lack of knowledge that this was being done to her.
Nemeth‘s Statements to Fain
Another issue raised by Ostrowe is whether the trial court erred in refusing to admit certain evidence tending to establish that even if Turner did not know about the female circumcision when it was done, she had found out about it as early as 1982, in
Ostrowe contends that Nemeth‘s statements to Fain were not hearsay, because those statements were not offered into evidence to prove the truth of the matter asserted. See
Ostrowe further urges that Nemeth‘s statements were not hearsay, but rather were authorized admissions, because the statements were offered against a party and were statements by a person authorized by that party to make a statement concerning the subject. See
Ostrowe further argues that, even if this court agrees that Nemeth‘s statements to Fain constituted hearsay within hearsay, they should have been admitted under one of several exceptions. Louisiana Code of Evidence article 805 states:
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided by legislation.
The trial court examined a number of hearsay exceptions and found none was applicable, stating:
Is there an applicable exception to the hearsay rule, provided by legislation, that satisfies the requirement of Article 805? It is not Article 803(3), as Dr. Nemeth is the declarant and it is not her condition or future actions that are at issue. Similarly, it is not Article 803(4)
* * *
Finally, there are certainly very interesting issues presented regarding the possible applicability of Article 804(B)(6). The first is that the declarant must be unavailable and, of course, Dr. Nemeth was present at the trial but not called. The defendant correctly makes the point that one who testifies to a lack of memory of the subject matter of his or her statement satisfies the “unavailability” requirement but Dr. Nemeth‘s deposition was not admitted until the plaintiff offered rebuttal, on a proffer (see the following paragraph). Accordingly, despite arguable trustworthiness, the prerequisites of that provision have not been satisfied.
The deposition of Dr. Nemeth was put in on a proffer, in rebuttal to her statements in the event they are found admissible, but her deposition makes it clear that she really has no helpful recollection of the events. Accordingly, one might argue that Article 613 may have allowed the statement to be admitted as a prior inconsistent statement, on the foundation of Dr. Nemeth having been given the opportunity to admit the statement and failed distinctly to do so. However, Dr. Nemeth did not testify and therefore, that exception is not applicable. Accordingly, after previewing the post-trial briefs submitted to the court on this issue, the required result is to sustain the hearsay objection and not admit that evidence. (Footnote omitted).
Ostrowe contends the trial court erred in its evaluation of Article 803(4), because the comments to that article state that the declarant need not be the patient for this paragraph to apply. However, those comments also clarify that if the declarant is not the patient, “there must be sufficient indications from the circumstances that the declarant possessed firsthand knowledge of that of which he spoke.” Obviously, Nemeth had no firsthand knowledge concerning any surgical procedures performed on Turner at any time.
We note that the introductory comments to the hearsay section of the Louisiana Evidence Code state the following:
A statement may be categorized under this Code as “non-hearsay” or as failing within an exception to the hearsay rule and yet it may have been made under particular circumstances that indicate that it is grossly and patently unreliable. In such a case the trial judge should exclude the statement if its admission would unfairly prejudice the objecting party.
For these reasons, we agree with the trial court‘s decision not to admit into evidence Fain‘s handwritten notes that purportedly reflect the content of his conversation with Nemeth concerning information she supposedly received from Turner while counseling her and Ostrowe over six years earlier. In evaluating the trial court‘s decision, we are guided by the abuse of discretion standard of review; we find no abuse of that discretion in this case.
Liability of Ostrowe
Ostrowe contends the trial court erred in finding him liable for conspiracy to commit a civil battery where there was insufficient evidence in the record to show that he was liable. Based on our review of the record evidence in this case, much of which has been summarized in the section dealing with the prima facie evidence of conspiracy, we conclude there is a reasonable factual basis in the record for the finding of the trial court, and the record further establishes that the finding is not manifestly erroneous.
Judicial Interest
Finally, Ostrowe claims he should not have to pay judicial interest from the date of judicial demand, because the case was delayed when the first trial before a jury ended in a mistrial due to a comment by Turner. He asks this court to suspend that interest for the time period between the mistrial and the entry of judgment after the second trial.
However, Ostrowe cites no authority for this proposition, nor has our research disclosed any. Rather, Article 1921 of the Louisiana Code of Civil Procedure states that the court shall award interest in the judgment as prayed for or as provided by law. According to Louisiana Revised Statute 13:4203, legal interest shall attach from date of judicial demand on all judgments sounding in damages ex delicto that may be rendered by any of the courts. The language of this statute is mandatory. General Ins. Co. of America v. Watts, 129 So.2d 511, 514 (La.App. 1st Cir.1961); Le Blanc v. New Amsterdam Cas. Co., 202 La. 857, 13 So.2d 245, 248 (1943). An award of legal interest in tort cases is not discretionary with the court, as the interest attaches automatically until the judgment is paid, whether prayed for in the petition or mentioned in the judgment. Dufrene v. Duncan, 93-0403 (La.App. 1st Cir.3/11/94), 634 So.2d 19, 22. We conclude that this assignment of error is without merit.
General Damages Award
Turner claims the trial court used an incorrect standard in awarding general
The court is not insensitive to the fact that some might feel a much higher award is justifiable under the circumstances. However, it is time to conclude this matter and allow these parties to reconstruct their lives in a productive way without being burdened further with this litigation (for their children‘s sake if not their own). Accordingly, the damage award in this case is fixed at $35,000, plus judicial interest from date of judicial demand, until paid.
Based on these written reasons for judgment, we agree with Turner that the trial court used some inappropriate factors in determining the amount of general damages to award. The plaintiff‘s mixed motives in filing the suit and the family‘s estrangement as a result of this litigation are not factors to be considered when making an award of general damages to the plaintiff.
General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. Aycock v. Jenkins Tile Co., 96-2348, 96-2349 (La.App. 1st Cir.11/7/97), 703 So.2d 117, 123, writ denied, 97-3056 (La.2/13/98), 709 So.2d 753, reconsideration denied, 97-3056 (La.3/20/98), 715 So.2d 1198. The primary objective of general damages is to restore the injured party in as near a fashion as possible to the state he or she was in at the time immediately preceding injury. Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1st Cir.11/10/94), 647 So.2d 351, 356. Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Anthony v. Hospital Service Dist. No. 1, 477 So.2d 1180, 1186 (La.App. 1st Cir.1985), writ denied, 480 So.2d 743 (La.1986).
Based on our review of the record, we conclude that the trial court‘s award of general damages in this case is abusively low. Turner was a healthy mother of three small children in her early 30‘s when this surgery was performed. She suffered excruciating pain for months after the surgery, most of which, according to the doctors who testified, could not be attributed to the posterior repair and therefore, must have resulted from the female circumcision. The medical testimony revealed that such initial pain was an inevitable result of this procedure, which involved the complete exposure of this nerve-filled organ. According to Turner, this pain was so intense that she could not wear any underwear; she bought and wore long skirts to preserve her modesty. Turner said that even after the incisions healed, she experienced severe vaginal pain, particularly with sexual activity. However, after being told by her husband and Dr. DiBenidetto that there was nothing physically wrong with her, she decided she would just have to bear the pain and go on with her life. Therefore, although she continued to experience pain with touch or pressure, even to the extent of being unable to wear jeans since the surgery, she did not seek further medical treatment. Eventually, the acute
Turner was angry with Ostrowe concerning the surgery even before she knew it included a female circumcision; she said she felt fine before her husband insisted she consult with Dr. Leggio concerning surgery, but following the surgery, she had such terrible pain and it never completely resolved. She repressed this resentment in order to make her marriage work. When she learned about the female circumcision, she felt totally betrayed and experienced disbelief, dismay, shock, and outrage concerning Ostrowe‘s role in having this done. According to Radzikowski and Pizzolatto, Turner‘s reactions to this information were extreme and hysterical. She sought mental health counseling several months later to deal with her emotions.
According to the doctors who testified concerning female circumcision, Turner has suffered a permanent and irreversible injury to this organ of her body. The physical damage has affected, and will always continue to affect, her ability to enjoy sexual activity. In addition, she has endured mental pain, depression, rage, helplessness, and humiliation due to this violation of the core of her sexual being. Her relationship with two of her children has become strained, because they sided with their father in this controversy.
Having determined that the meager general damage award constituted an abuse of discretion by the court, we must assess an appropriate measure of damages, keeping in mind that we can only raise the award to the lowest point within the court‘s discretion. Although we can be guided at this point by prior awards, the unusual nature of this injury and its consequences makes it difficult to draw meaningful comparisons to other cases.
In Seagers v. Pailet, 95-52 (La.App. 5th Cir.5/10/95), 656 So.2d 700, due to an improperly performed caesarian section, a woman suffered five years of genital pain that prevented her from having sexual relations with her husband; she also had incontinence and other problems that were ultimately repaired after two additional surgical procedures. A jury award of $54,000 for past pain and suffering and $53,750 for past, present, and future mental anguish and emotional distress was increased by the appellate court to $75,000 for each of those categories, for a total award of $150,000. In Edenfield v. Vahid, 621 So.2d 1192 (La.App. 3rd Cir.), writ denied, 629 So.2d 1171 (La.1993), a woman who had an improper repair of an anal fistula developed pain, incontinence, and other problems that were substantially repaired by a second surgery just four months later. The appellate court overturned the trial court‘s judgment in favor of the surgeon and awarded the woman $150,000 in general damages. In Smith v. State, through Dep‘t of Health and Human Resources, 93-691 (La.App. 3rd Cir.2/2/94), 631 So.2d 628, $100,000 in general damages was awarded to a woman who experienced pain and other problems as a result of an improper repair of an episiotomy after giving birth. A second surgery nine months later repaired the problem with no residual physical impairments. A thirty-six-year-old man who suffered loss of normal sexual function following an accident was awarded $25,000 by the trial court; this court raised the award to $125,000, stating this was “the lowest level a reasonable trier of fact could have awarded.” Finwall v. Union Oil Co. of California, 551 So.2d 673, 674 (La.App. 1st Cir.1989).
CONCLUSION
The judgment of the trial court is amended and Ostrowe is ordered to pay Turner $125,000, plus legal interest from date of judicial demand and all court costs other than those associated with the first trial. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Ostrowe.
AMENDED AND AS AMENDED, AFFIRMED.
CARTER, C.J., concurs in the result.
Notes
Whenever a ... record of any ... health care provider ..., certified or attested to by the ... health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the... record is sought to be used may summon and examine those making the original of the ... record as witnesses under cross-examination.
Under Louisiana Revised Statute 40:1299.41(A)(1), the term “health care provider” includes psychologists.