574 F.2d 1 (1st Cir. 1978), 77-1260, Downs v. Sawtelle

Docket Nº:77-1260.
Citation:574 F.2d 1
Party Name:Georgia Mae DOWNS, Plaintiff, Appellant, v. Roberta SAWTELLE et al., Defendants, Appellees.
Case Date:March 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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574 F.2d 1 (1st Cir. 1978)

Georgia Mae DOWNS, Plaintiff, Appellant,

v.

Roberta SAWTELLE et al., Defendants, Appellees.

No. 77-1260.

United States Court of Appeals, First Circuit

March 30, 1978

Argued Sept. 9, 1977.

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[Copyrighted Material Omitted]

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Stephen D. Clapp, North Attleboro, Mass., with whom Armstrong, Pollis & Clapp, North Attleboro, Mass., Douglas A. Clapp, Michael J. Cunniff, and Stitham, Clapp & Cunniff, Pittsfield, Maine, were on brief for plaintiff, appellant.

Stephen H. Shook, Milo, Maine, with whom Edgerly & Shook, Milo, Maine, was on brief, for Davis A. Goodine, defendant, appellee.

Joseph M. Kozak, Asst. Atty. Gen., Augusta, Maine, for Ruth A. Hagan, Marilyn B. Dow, and Mary Lou Pattison, defendants, appellees.

John L. Easton, Jr., Dover-Foxcroft, Maine, with whom C. W. & H. M. Hayes, Dover-Foxcroft, Maine, was on brief, for Roberta Sawtelle, defendant, appellee.

Phillip D. Buckley, Bangor, Maine, for Carl H. Carlson, defendant, appellee.

Malcolm L. Lyons, Augusta, Maine, with whom Wathen & Wathen, Augusta, Maine, was on brief, for John B. Curtis, defendant, appellee.

John M. Wallach, Bangor, Maine, for Milo Community Hospital and Ava Strout, defendants, appellees.

Rudman, Winchell, Carter & Buckley, Bangor, Maine, on brief, for Carl H. Carlson, Milo Community Hospital and Ava Strout, defendants, appellees.

Before COFFIN, Chief Judge, TUTTLE, Circuit Judge, [*] WOLLENBERG, District Judge. [**]

COFFIN, Chief Judge.

Georgia Mae Downs, a deaf mute mother of two children born out of wedlock, brought this action for damages under 42 U.S.C. § 1983, alleging a conspiracy to sterilize her against her will, to delay her marriage to her present husband, and to remove her second child from her custody, all in violation of her constitutional rights. Before trial, summary judgment was granted to defendants Milo Community Hospital, where the operation was performed, its administrator, Ava Strout, and the town manager of Milo, Maine, Mr. Carlson, who authorized payment for the sterilization out of municipal funds. At the close of the plaintiff's evidence before a district court jury, verdicts were directed for defendants, Roberta

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Sawtelle, plaintiff's sister and spendthrift guardian 1; Dr. John Curtis, the Chief of Staff of Milo Community Hospital and attending surgeon at the operation; three social workers of the state of Maine Department of Health and Welfare, who approved and helped arrange the guardianship proceedings, custody surrender, and sterilization; and Davis Goodine, the plaintiff's father. Plaintiff now appeals. 2

This was an exceptionally confusing and emotional case. The district court was required to deal with a large quantity of conflicting evidence and extraordinary problems of communication. Our discussion will not fairly reflect these problems, for, in accordance with the standards for appellate review of orders disposing of a case by summary judgment and directed verdict, we present the evidence in the light most favorable to the plaintiff. See Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Wilson v. Nooter Corp., 475 F.2d 497, 501 (1st Cir. 1973).

Although she was apparently born with normal hearing, plaintiff became deaf at age three, when hot coffee scalded her ear. Her primary and secondary school years were spent at the Governor Baxter State School for the Deaf. Although plaintiff was instructed in American Sign Language and taught to read and write, communication with her was frequently quite difficult. Tests showed her to have the reading comprehension of a fourth grader and borderline or dull normal intelligence.

Following her graduation from the Baxter School at age 18, plaintiff returned to her home town of Milo, Maine. Her social behavior provoked considerable conflict among the members of her family. At age 19, plaintiff gave birth to her first out-of-wedlock child. She cared for it for a time, but later surrendered it to her father, who obtained legal custody of the child and boarded it with his girl friend. Marilyn Dow, a state social worker assigned to plaintiff's case, and Dr. Curtis, the family physician, attempted to introduce plaintiff to various methods of contraception, but fifteen months after the birth of her first son, plaintiff was again pregnant.

The prospect of a second child gave rise to two concerns: placement of the baby and prevention of future pregnancies. Plaintiff's father petitioned the state probate court to be appointed her guardian in order to place the second child with its half-brother. Roberta Sawtelle opposed her father's petition and, with the backing of Mrs. Dow, herself sought appointment as plaintiff's spendthrift guardian, with a view to surrendering the child for adoption. At some point Sawtelle learned that plaintiff planned to marry Carroll Downs and wanted to have children with him. Although Downs was not the father of the child plaintiff was carrying, he intended to keep it after his marriage to plaintiff and wanted it to bear his name. Dow and Sawtelle, however, were aware that the existence of a husband could impede efforts to have the child adopted, and they agreed that Sawtelle would persuade plaintiff and Downs that her consent to the marriage was required and would withhold it until after the baby's birth.

There is conflicting evidence as to the origin of the idea to have plaintiff sterilized. Social worker Mary Lou Pattison asserted that the father contacted the Department of Health and Welfare for help in coping with plaintiff's second pregnancy and for state funds to pay for the sterilization. However, the father's deposition and the agency's own reports indicate that the agency initiated the idea. Sawtelle, who had herself been sterilized, seems to have favored it from the beginning. In any

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event, it was Dow who assumed responsibility for contacting Dr. Curtis about medical preparations for the operation and arranged to have the town of Milo assume the necessary medical expenses.

As plaintiff's pregnancy progressed, sterilization was repeatedly proposed to her by Dr. Curtis and her sister, who accompanied her on each prenatal visit. Attempts to explain the meaning of sterilization through handwritten notes from the doctor and sign language interpretation by Sawtelle met with considerable difficulty. Dr. Curtis and Sawtelle asserted that plaintiff ultimately understood that sterilization meant she would have "no more babies" and that she agreed with the proposal. Plaintiff insisted that, to the extent of her limited ability to communicate, she registered her opposition but Sawtelle and the doctor continued to discuss plans for the sterilization. Some time before the operation was to be performed, plaintiff wrote a letter to Dr. Curtis which, although difficult to decipher, expressed her plan to marry Carroll Downs and her wish to have additional children with him. 3 Dr. Curtis testified at trial that he treated the letter "so lightly that I didn't attach too much importance to it." He continued to make the necessary arrangements for the operation.

There was considerable testimony, much of it confusing and contradictory, as to the authority under which the operation was actually performed and the understanding of the participants in that regard. The policy of Milo Community Hospital, of which Dr. Curtis was Chief of Staff, permitted sterilizations in any of six circumstances. It was conceded that only one of them, mental retardation, could even arguably apply to the plaintiff. Dr. Curtis testified, however, that he did not consider plaintiff to be feeble-minded or retarded and that he had not read any test results indicating she was either. Yet Dr. Curtis' hospital report recommended sterilization "based 90% on this girl's low mentality involving poor judgment and her lack of restraint on sex appetite and its consequences."

Dr. Curtis requested that two other physicians consult with him on the case. Their written reports were devoid of any medical analysis or any indication that plaintiff consented to the operation. One physician concluded, without elaborating, that plaintiff "apparently lack(ed) ability to curtail normal appetite for sex", that she was "(p)otentially dangerous", and that her low economic earning power demonstrated "irresponsibility". The second physician's report stated, "uncontrolled appetite leads to promiscuity. Apparently retarded. Incapable of functioning in a maternal role."

Hospital policy also required that the patient and another party (the form suggests a spouse) sign a standardized sterilization consent form. Although plaintiff signed other minor forms on her entry into and discharge from the hospital, she was never approached to sign the sterilization consent form. Indeed none of the defendants attempted to explain the form to her, although Dr. Curtis conceded that it could have been explained in terms she could have understood. Instead of plaintiff, her spendthrift guardian, Sawtelle, signed the form.

Dr. Curtis testified that he relied on the guardian's consent to perform the operation, although he had never before done so. Some time prior to the operation he asked social worker Marilyn Dow who could legally consent to the operation. Although Dow suggested that he obtain that information from the probate judge, the doctor ignored the advice and made no other effort to determine the legal prerequisites for an operation of this nature. He relied on his memories from medical school and his internship, which concluded in 1937, that a guardian's consent sufficed.

According to Dr. Curtis, plaintiff at all times indicated her consent to be sterilized.

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There is considerable dispute as to her...

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