Kesterson v. Jarrett, A10A1452.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtELLINGTON, Judge.
Citation307 Ga.App. 244,704 S.E.2d 878
PartiesKESTERSON et al.v.JARRETT et al.
Docket NumberNo. A10A1452.,A10A1452.
Decision Date01 December 2010

307 Ga.App. 244
704 S.E.2d 878
10 FCDR 3991

KESTERSON et al.
v.
JARRETT et al.

No. A10A1452.

Court of Appeals of Georgia.

Dec. 1, 2010.


[704 S.E.2d 879]

Parks, Chesin & Walbert, David F. Walbert, Charles A. Mathis Jr., Atlanta, for appellants.Forrester & Brim, Weymon H. Forrester, Gainesville, Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, Atlanta, Begnaud & Marshall, Andrew H. Marshall, Athens, for appellees.

[704 S.E.2d 880]

ELLINGTON, Judge.

[307 Ga.App. 244] Catherine and Ross Kesterson, individually, and their minor daughter, Kyla, by and through her parents, appeal from a jury verdict and final judgment in favor of the defendants in this medical malpractice case. Following a bifurcated trial on the issue of liability, the jury returned a verdict in favor of Walter Jarrett, M.D., Athens Obstetrics and Gynecology, P.C., and St. Mary's Healthcare System, Inc. d/b/a St. Mary's Hospital. On appeal, the Kestersons contend the State Court of Clarke County erred in granting the defendants' request to limit Kyla's presence in the courtroom during the liability phase of the trial, in limiting their cross-examination of Jarrett, and in excluding video evidence offered to illustrate Kyla's injuries. For the reasons that follow, we find no reversible error and affirm the jury's verdict.

Viewed in the light most favorable to the jury's verdict,1 the record shows the following facts relevant to this appeal. At about 6:15 a.m. on October 20, 1998, Catherine Kesterson (“Kesterson”) was admitted to St. Mary's Hospital so that her obstetrician, Jarrett, could induce labor. Jarrett administered Pitocin, a medication used to stimulate uterine contractions. The hospital nursing staff connected Kesterson to a fetal heart rate monitor, an external device which generated printed information documenting any changes in the fetus' heart rate. The nurses monitored Kesterson's labor until she delivered Kyla at 8:15 p.m. Jarrett examined Kesterson at 2:30 p.m., 4:00 p.m., and 5:45 p.m. During the last examination, Jarrett noted that Kesterson was in active labor, but that her cervix was not sufficiently dilated to deliver. Jarrett ordered an epidural for Kesterson and then went to a meeting, leaving his patient in the care of his partner, Dr. Van Herrin.

The day nurse, who was present until 7:00 p.m., did not observe anything about Kesterson's labor, including any changes in the fetus' heart rate, that caused her concern. Although she noted “variable decelerations” of the fetus' heart rate, those were either associated with Kesterson's contractions or related to the fact that she was sitting up for an epidural, and the nurse did not consider them to be unusual. When the evening nurse came on duty at 7:00 p.m., she reviewed the fetal heart rate monitor and noted: “Fetal heart rate with minimal variability; occasional variable decel, some late occurring; patient turned to full right lateral position.” Nothing she [307 Ga.App. 245] observed caused her to be concerned. Around 7:34 p.m., the evening nurse observed that the heart rate monitor had registered a more significant deceleration of the fetus' heart rate and that it was not returning to normal as quickly as it had before, suggesting a deceleration unrelated to contractions. After giving Kesterson oxygen, the nurse paged Herrin and relayed her observations. Herrin responded within minutes, examined Kesterson, and ordered an emergency Caesarean section. Shortly thereafter, he delivered Kyla.

Kyla was born with very low “Apgar scores,” a gross assessment of the infant's medical condition at specific intervals after birth. Within a day of her delivery, Kyla had a brain ultrasound and CT scan, neither of which revealed any injury. A week later, an MRI of Kyla's brain revealed damage to parts of the brain that control motor function. Kyla was eventually diagnosed with spastic quadriplegia, a form of cerebral palsy. As a result of this condition, Kyla is unable to control her movements and is confined to a special wheelchair, she has a feeding tube inserted into her stomach, her airway must be suctioned several times a day, she has bladder and bowel dysfunction, she suffers frequent seizures, she has severely limited cognitive function, and she cannot speak.

The Kestersons contended at trial that Kyla's neurological injuries occurred when she was deprived of oxygen just prior to birth. They argued that the nurses and Jarrett were negligent in failing to timely

[704 S.E.2d 881]

recognize the signs of fetal distress and that if Jarrett had performed a Caesarean section earlier, Kyla would not have been injured. The defendants argued that their actions did not fall below the standard of care, that an earlier Caesarian section was not medically indicated, and that Kyla's cerebral palsy may have resulted from something other than an event that occurred during delivery.

1. The Kestersons contend that the trial court “erred in granting [the] defendant's motion to ban Kyla from the courtroom during the trial.” Under the unique circumstances of this case and for the following reasons, we hold that the trial court's carefully considered decision to limit Kyla's presence in the courtroom during the liability phase of the trial did not constitute reversible error.

(a) Relevant Facts. Following a hearing, the trial court entered an order granting the defendants' request to bifurcate the trial, separating the issues of liability and damages. The court held that “any testimony related to monetary damages is irrelevant to the liability portion of the trial.” The court held that all evidence of damages, including pain and suffering, “shall be reserved until such time as Plaintiff has established malpractice by one or more of the Defendant[s].” The Kestersons do not contend that the court erred in bifurcating the trial.

After the court ordered the trial bifurcated, the defendants [307 Ga.App. 246] moved to exclude Kyla from the liability phase of the trial. The defendants attached as exhibits to the motion the detailed medical assessments of Kyla by two doctors. Both doctors described Kyla's severe injuries, profoundly limited cognitive function, and the daily medical care and equipment required to keep her alive. On the issue of her cognitive functioning, one doctor noted that Kyla's “[s]peech and language exam was notable for crying, but no response to sounds, voices, and no oral utterance except for cries. I do not believe the child is [able to respond to yes or no questions with an] eyeblink.”

The court conducted an evidentiary hearing on the motion, during which the Kesterson's counsel made the following statements: “[W]e never envisioned that [we would] bring Kyla Kesterson to this courtroom and leave her in the courtroom during ... the entire trial.... We would never subject her to that.” “Kyla is represented in this action by her parents.” “[W]e should not be limited from ... introducing her to the jury even during the liability phase of the trial.... It will be very, very short, and then ... she will probably be out of here for the rest of [the liability] phase.” “[W]e have no intention of bringing Kyla Kesterson in. Number one, it wouldn't be right to do it. We can't do it for long, long periods of time.... But there may be some limited appearances that we may have of her, and we have a right, we believe, to use a picture and a video of her during the liability phase.”

Following the hearing, the court entered a written order finding as follows:

[Kyla Kesterson] currently has severe and permanent neurological disabilities and brain damage, is immobile and in a wheelchair, suffers frequent seizures, has a feeding tube, requires suctioning of her airway several times a day, suffers from bladder and bowel dysfunction, and is unable to communicate other than by a few gestures, crying and making loud noises.

The court also noted that “Plaintiffs responded that [Kyla] will not be brought into the courtroom for any lengthy period of time.” After restating the parties' positions on the question of whether Kyla's presence in the courtroom during the liability phase of the trial was unduly prejudicial, and after finding that Kyla's interests were protected by her parents, who would be present in the courtroom, [307 Ga.App. 247] the court concluded:

The Court shall allow Plaintiff Kyla Kesterson in the courtroom at the time of the call of the case for trial immediately prior to voir dire of the jury panel. After introduction of [Kyla] to the jury panel, the child's presence during the liability phase of the trial shall not be allowed until the Court, outside of the jury's presence, determines that the presence of such child is

[704 S.E.2d 882]

essential and relevant to witness testimony related to medical conditions affecting said child which resulted from alleged negligent acts by one or more Defendants.... However, the Court reserves the right to remove [Kyla] from the courtroom at any time the Court perceives that her actions are distracting or disruptive to the proceedings or otherwise result in potential prejudice to one or more of the defendants.

The record reflects that the Kestersons brought Kyla into the courtroom briefly during voir dire before voluntarily removing her. Thereafter, pursuant to the court's rulings, the Kestersons made three requests to bring Kyla into the courtroom. They asked that Kyla be present during the testimony of a physician who treated Kyla in the month following her birth but who had not since examined her. The court denied the request, finding that Kyla's presence was not “necessary with respect to giving any opinions that he [could] give” concerning his past treatment. The Kestersons also asked that Kyla be present during Catherine Kesterson's testimony to illustrate to the jury Kyla's physical injuries and disabilities and to establish the nature of her medical condition and whether the defendants caused Kyla's condition. The defendants...

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6 practice notes
  • Nelson v. Bd. of Regents of The Univ. System of Ga., No. A10A1278.
    • United States
    • Georgia Court of Appeals
    • 1 December 2010
    ...1, 1991, the insurance waiver of sovereign immunity does not apply. 48 In sum, the Resident Defendants were entitled to immunity under [704 S.E.2d 878] OCGA § 50–21–25(a), and the trial court's decision granting their motion to dismiss was proper.49 Judgment affirmed.--------Notes: 1. MCG H......
  • Goulding v. State, No. A15A0841.
    • United States
    • United States Court of Appeals (Georgia)
    • 10 November 2015
    ...to damages, not liability, and that it was unduly prejudicial in that it played upon the jury's sympathies." Kesterson v. Jarrett, 307 Ga.App. 244, 252(3), 704 S.E.2d 878 (2010), overruled on other grounds, Kesterson v. Jarrett, 291 Ga. 380, 728 S.E.2d 557 (2012) (Court of Appeals erred in ......
  • Kesterson v. Jarrett, No. S11G0590.
    • United States
    • Georgia Supreme Court
    • 18 June 2012
    ...and her mental condition precludes her from meaningfully participating in and understanding the proceedings. See Kesterson v. Jarrett, 307 Ga.App. 244, 250, 704 S.E.2d 878 (2010) (citing Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir.1985)). We conclude, however, that a party may not......
  • Phillips v. Harmon, Nos. S14G1868
    • United States
    • Supreme Court of Georgia
    • 29 June 2015
    ...and the party's mental condition precludes meaningful participation in and understanding of the proceedings. See Kesterson v. Jarrett, 307 Ga.App. 244, 248 –251(1)(b), 704 S.E.2d 878 (2010). So, the issue before this Court on certiorari was whether a party might be denied the right to be pr......
  • Request a trial to view additional results
6 cases
  • Goulding v. State, A15A0841.
    • United States
    • United States Court of Appeals (Georgia)
    • 10 November 2015
    ...to damages, not liability, and that it was unduly prejudicial in that it played upon the jury's sympathies." Kesterson v. Jarrett, 307 Ga.App. 244, 252(3), 704 S.E.2d 878 (2010), overruled on other grounds, Kesterson v. Jarrett, 291 Ga. 380, 728 S.E.2d 557 (2012) (Court of Appeals erred in ......
  • Nelson v. Bd. of Regents of The Univ. System of Ga., A10A1278.
    • United States
    • United States Court of Appeals (Georgia)
    • 1 December 2010
    ...1, 1991, the insurance waiver of sovereign immunity does not apply. 48 In sum, the Resident Defendants were entitled to immunity under [704 S.E.2d 878] OCGA § 50–21–25(a), and the trial court's decision granting their motion to dismiss was proper.49 Judgment affirmed.--------Notes: 1. MCG H......
  • Kesterson v. Jarrett, S11G0590.
    • United States
    • Supreme Court of Georgia
    • 18 June 2012
    ...and her mental condition precludes her from meaningfully participating in and understanding the proceedings. See Kesterson v. Jarrett, 307 Ga.App. 244, 250, 704 S.E.2d 878 (2010) (citing Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir.1985)). We conclude, however, that a party may not......
  • Phillips v. Harmon, s. S14G1868
    • United States
    • Supreme Court of Georgia
    • 29 June 2015
    ...and the party's mental condition precludes meaningful participation in and understanding of the proceedings. See Kesterson v. Jarrett, 307 Ga.App. 244, 248 –251(1)(b), 704 S.E.2d 878 (2010). So, the issue before this Court on certiorari was whether a party might be denied the right to be pr......
  • Request a trial to view additional results

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