Naples Medical Malpractice Case: Testimony

In our last post we talked about the medical malpractice and wrongful death case of Ann Olesky, which is taking place in Naples, Florida. The Naples News is following the case closely and has quoted exact testimony in its news stories.

The events in question occurred in June of 2004 – more than 7 years ago. It’s clear from the news story that the medical providers and the family have far different recollections of events.

While one may think that traumatic events like this would stay in one’s mind forever, that is often not the case. In fact, the Supreme Court will soon be revisiting the question of eyewitness testimony in criminal cases as research over the past 30 years has shed light on how human memory works and DNA evidence has found that eyewitness identification is incorrect about one third of the time.

Although it took 7 years for this case to arrive in court, the work of the legal teams began long ago when they started to gather evidence, locate witnesses and take depositions. The sooner a legal team can begin its investigation, the more likely it is that witnesses will have an accurate recollection of events. And that original testimony will be brought into the trial as lawyers and witnesses recount the facts as they know them.

“He said/she said” testimony can make it hard for a jury to decide so the legal teams will provide other evidence to back up that testimony. The first place they will look is the medical record. For example, in the Olesky case that family was particularly angry about the lack of responsiveness of the doctor the night before Mrs. Olesky died. They say he ignored a page and was late to respond to a second. The medical record showed the first Code Blue had been cancelled and that it took the doctor 15 minutes to respond to a second page.

Other records were also used. In this instance, the doctor said he was at home when phone records show he was at a dance lounge a few blocks from the hospital. This could be an innocent slip of memory after 7 years – or maybe not. It’s up to the jury to decide, based on a totality of the evidence.

Source:, “Nurse breaks down during Olesky wrongful death trial; surgeon’s drinking habits questioned,” by Aisling Swift, August 30, 2011.