Judges of the Georgia Supreme Court are currently considering the question of whether a child with severe cerebral palsy should have been allowed in the courtroom in her own case, and whether the judge in the original trial was wrong to exclude her.

The 8-year-old girl was deprived of oxygen during delivery and her parents had sued her doctor, saying that if he had performed a c-section earlier, the child would not have suffered a birth injury resulting in cerebral palsy. The child does not speak and requires round-the-clock care. She needs her airway suctioned numerous times a day, has seizures and cannot communicate except by crying.

The trial judge excluded the child on the grounds that she would attract undue attention from the jurors and could distract from the trial. Furthermore, the trial judge said her presence in the courtroom would lead the jury to make a decision based on emotion rather than evidence.

The girl was allowed to be present during jury selection and was allowed in court once, when a defense expert witness was asked whether her facial features were consistent with the type of injury alleged to have occurred. The judge even forbid the defense from showing the jury a videotape of the girl's mother caring for her.

The jury found in favor of the doctor. The girl's parents appealed. A panel of the Georgia Court of appeals ruled for the defense, issuing an opinion that a trial judge can exclude a plaintiff from the liability phase of a trial if:

  1. "The plaintiff is severely injured;
  2. The plaintiff attributes those injuries to the conduct of the defendant(s);
  3. There is a substantial likelihood that the plaintiff's presence in the courtroom will cause the jury to be biased toward the plaintiff based on sympathy rather than the evidence such that the jury would be prevented or substantially impaired from performing its duty;
  4. The plaintiff is unable to communicate with counsel or to participate in the trial in any meaningful way; and
  5. The plaintiff is unable to comprehend the proceedings."

The family appealed to the Georgia Supreme Court agreed to hear the case. The decision could impact other trials in which defense seeks to exclude plaintiffs who have serious disabilities or disfigurement. As such, it may be a case that continues to be appealed up to the federal appeals court or the U.S. Supreme Court.

Source: Daily Report Online, "Judges: Who can be kept from trial?" by Alyson M. Palmer, January 12, 2012