New Malpractice Trial Following Appeal in Georgia Birth Injury Case

Our Alpharetta medical malpractice lawyers appreciate that the Georgia Supreme Court’s decision this week in Kyla Kesterson’s case is a positive development for Georgia law. The Supreme Court ordered a new trial in the young girl’s medical malpractice case because the trial court erred in not allowing her in the courtroom because of potential undue sympathy from the jurors.
Kyla was born in 1998 at St. Mary’s Hospital. After her birth an MRI showed damage to her brain and doctors diagnosed her with a form of cerebral palsy. She is now a teenager but is confined to a wheelchair, cannot speak or control her movements, has a feeding tube, must have her airway suctioned several times a day and suffers frequent seizures, among other problems, according to the trial court records. Kyla’s parents filed the lawsuit in 2003 claiming that her cerebral palsy was due to the medical malpractice of her obstetrician, Dr. Walter Jarrett, and the hospital staff. child.jpg

The lawsuit claimed that the staff did not promptly respond to readings from the fetal heart monitor and inform doctors in enough time to perform a Caesarean section before Kyla’s brain was damaged. When she was delivered, Kyla was not breathing and the lack of oxygen contributed to her brain damage. The lawsuit also question Dr. Jarrett’s decision to induce labor with drugs rather than perform a C-Section.
The trial occurred in 2007. Then Clark County State Court Judge Kent Lawrence only allowed Kyla into the courtroom once, although her parents asked for her to be allowed in court three times. Judge Lawrence was worried about undue sympathy for the young girl’s condition. The trial jury exonerated the doctor and hospital and the Kestersons took the case to the Court of Appeal, which upheld the verdict.
However, the case was appealed against, and the Georgia Supreme Court ordered a new trial for Kyla, where she can be present. It was a nearly unanimous decision and Justice David Nahmias wrote for the majority in finding that it was Kyla’s right to be in court for her trial. While Judge Lawrence was rightly concerned about undue jury sympathy, there were other ways it could have been dealt with, such as venue change or more targeted questions to potential jurors. Justice Nahmais wrote, “The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this nation and, if anything, even more embedded in the law of this state.” He went on to say exclusion of a party from the courtroom is the exceptional case, and there is no precedent in Georgia for doing that in a case like Kyla’s.

If you or someone in your family has been hurt by medical malpractice, our experienced Alpharetta medical malpractice attorneys at Sammons & Carpenter, PC ( can assist you with determining whether you have a case and how to move forward. Call us today at 404-991-5950, or fill out our confidential online case evaluation form for a free consultation.
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