The 2nd DCA held in the case of Olesky v Stapleton that it was reversible error when the trial court precluded one of the Plaintiff’s expert from testifying as to a relevant matter. What struck me about this Medical Malpractice opinion was not just the courts error, but the amount of time that the Plaintiff(husband) has had to live with this case,and unable to have closure for the untimely death of his wife.
The facts are that Ann Olesky died in 2004 from either a treatable cardiac tamponade or an aortic dissection(Plaintiff’s theory) or a spontaneous, simultaneous, bilateral coronary artery dissection(Defendant’s theory). The key distinction between the competing theories is that one is detectable while the other is not.
This case was tried twice. The first trial resulted in a mistrial because of a hung jury.
The second trial resulted in a defense verdict, and it was from that verdict that the appeal followed.
In the second trial the judge precluded the Plaintiffs expert from testifying that had an echocardiogram been performed it would have shown a cardiac tamponade. The court was clearly misled by defense counsel into reversible error. The defense argued that Plaintiff’s expert could not testify about what a test that was never performed(Echocardiogram) would have revealed. This is the very essence of a failure to diagnose Medical Malpractice case.
Thankfully, the 2nd DCA held that the trial court committed reversible error, and the case will probably be tried a third time. However, that is not the point that I wish to make. The real injustice is that the Plaintiff(husband) has been put thru two trials and 10 years of litigation. THe Plaintiff’s lawyers have worked on this case for years, and expended significant sums of money. This all favors the defense. With every day that passes, the Plaintiff is further removed from the death of his wife, and more money is wasted on experts, depositions, etc. So by leading the court into reversible error, the defense gets to hold onto their money a little longer, and gets to wear the plaintiff down a little more. This is the essence of a tactical litigation advantage the the defense holds over the plaintiff-especially in costly medical malpractice trials.