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Can a Plaintiff be `Banned' From Courthouse?

CASE ON POINT: Rubert-Torres v. Hosp. San Pablo, (2000 West Law 249149) F.3d - PR

ISSUE: Can a plaintiff be banned from the court room, in which her case is presented to a jury? Can she be banned from the courthouse? These were just some of the issues with which the United States Court of Appeals for the First Circuit was confronted in this extraordinary case.

CASE FACTS: Josefina Rubert-Torres brought a suit for medical malpractice on behalf of her daughter, Kimayra Cintron-Rubert, a 21-year old woman with cerebral palsy. She sued Dr. Nestor Rivera-Cotte, the physician who delivered Kimayra and Hospital San Pablo, where Kimayra was born. Before trial, the Unite States District Court for the District of Puerto Rico entered summary judgement for the hospital. The case proceeded to trial against Dr. Rivera-Cotte. The plaintiffs theory, supported by an obstetrical/gynecological (OB/GYN) expert and a neurological expert, was that physician error during pregnancy and delivery caused Kimayra's disabilities. The defendant, Dr. Rivera-Cotte's defense, supported by his own OB/GYN, neurological, and genetics experts, was that the Kimayra's disabilities arose genetically. Kimayra was present on the first day of trial and her attorney explained to the potential jurors that "she will not be with us in ... for obvious reasons for a lot of the trial, but she is entitled to be here." He explained that she would not be present during jury selection because she "was getting ... restless" and they did not want her "to disrupt the proceedings." During opening statements, the trial judge banned Kimayra from the courtroom. The record reflected that her attorneys did not request, and the trial judge did not offer, a reason for the decision. In chambers and off the record, the trial judge banned Kimayra not only from courtroom, but from the entire courthouse for the duration of the trial. Dr. Allan Hausknecht, a neurologist, testified for the plaintiff. He stated that one possible cause of the plaintiffs cerebral palsy was a genetic factor and that there were about 20 or 30 different physical characteristics that might show that Kimayra had genetic abnormalities and that he concluded, based upon her appearance, that her cerebral palsy was not the result of a genetic abnormality. He stated that he could demonstrate this if Kimayra were present The jury returned a verdict for the defendant. The plaintiffs appealed.

COURT'S OPINION: The United States Court of Appeals for the First Circuit reversed the judgment of the trial court and remanded the case for a new trial. The court addressed two arguments; (1) that Kimayra was improperly excluded from the courthouse and (2) that Kimayra should have been allowed to appear for a physical demonstration during the questioning of her own expert witness. The court noted that during the course of the trial, Dr. Jesus Velez-Borras, the defendant physician's neurological expert, also discussed the importance of examining Kimayra's physical appearance to determine whether her cerebral palsy was genetic in origin. Dr. Velez-Borras' testimony contradicted that of Dr. Hausknecht. Based upon his earlier examination of Kimayra, Dr. Velez-Borras concluded that her condition was genetic in nature. Dr. Aubry Milunsky, a genetic expert who also testified for defendant physician, also partially based his conclusion that Kimayra's cerebral palsy was genetic in origin based on her physical appearance.

LEGAL COMMENTARY: In the usual case involving a disabled plaintiff, both parties, before trial, should raise the issue of prejudice of the jury. The court should hold an evidentiary hearing at which it "observes the injured party." At the hearing, the defendant has the burden of persuasion to show that the plaintiff should be excluded because his or her "mere presence would prejudice the jury." Only if the defendant persuades the trial justice of jury prejudice should the court question whether the plaintiff "can comprehend the proceedings and assist counsel in any meaningful way." A plaintiff may only be excluded from court if both her presence would prejudice the jury and she cannot understand counsel and assist in the case. While the experts were allowed to describe Kiamyra's appearance for the jury, the "clearest evidence" on her physical appearance would have been for the jury to see her. Assuming a jury view would be prejudicial, the trial judge could have used a less restrictive means to minimize the prejudice than excluding Kimayra from the courtroom. The court might have considered limiting the amount of time she would be present before the jury, allowing her to enter and exit the courtroom outside the jury's presence, and giving instructions which would minimize prejudice.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of a David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal article shave been published in the most prestigious health law journals. A prolific writer, his thousand of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Article Details
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Mar 1, 2000
Words:877
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