Child Victim Wrongfully Evicted from Medical Malpractice Trial

On behalf of Brown & Crouppen, P.C. posted in Medical Malpractice on Tuesday, June 19, 2012

When someone in Missouri is harmed by a physician’s medical malpractice and seeks compensation in court, it is natural to expect that he or she would attend the trial. After all, he or she is a party to the lawsuit. Even if the plaintiff suffered a brain injury due to the malpractice that makes it difficult for him or her to follow the proceedings, few in Missouri would question his or her right to be present.

But a judge in a medical malpractice suit did not see things that way. With one brief exception, the judge barred a then-9-year-old girl that her parents said was left with severe disabilities due to medical negligence during her delivery from the courtroom. The judge’s reasoning was that the girl’s appearance would cause the jury to unfairly sympathize with her. Following the 2008 trial, the jury found in favor of the accused doctor and the hospital where the girl was delivered.

The girl, now 13, has cerebral palsy and uses a wheelchair. She cannot speak and has limited cognitive abilities.

But on appeal, the Georgia Supreme Court ruled on June 18 that the judge wrongfully kept the girl from attending her trial. The trial court should not have “denied her right to present in court based solely on the risk that her physical or mental condition may generate improper sympathy from the jury,” the top court wrote in its 6-1 decision. The girl had the right to attend the malpractice trial even though “her condition prevents her from actively participating or fully understanding the proceedings,” the decision said.

The judge could have mitigated the risk of undue jury sympathy by giving instructions to the jury or attorneys, or having the trial transferred to another county, according to the ruling. The case has now been sent back for a new trial.

Source: The Atlanta Journal-Constitution, “Court says disabled child can attend trial,” Bill Rankin, June 18, 2012

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