Gysegem v. Ohio State Univ. Wexner Med. Ctr. , 2021 Ohio 4496 ( 2021 )

[Cite as Gysegem v. Ohio State Univ. Wexner Med. Ctr., 2021-Ohio-4496.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
John Timothy Gysegem et al., :
Plaintiffs-Appellants, : No. 20AP-477
(Ct. of Cl. No. 2018-113JD)
v. :
(REGULAR CALENDAR)
Ohio State University Wexner Medical :
Center,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on December 21, 2021
On brief: Murray & Murray Co., L.P.A., Charles M. Murray,
and Joseph A. Galea, for appellants. Argued: Charles M.
Murray.
On brief: Dave Yost, Attorney General, Jeffrey L. Maloon,
and Brian M. Kneafsey, Jr., for appellee. Argued: Jeffrey L.
Maloon.
APPEAL from the Court of Claims of Ohio
BROWN, J.
{¶ 1} This is an appeal by plaintiffs-appellants, John Timothy Gysegem and Cheryl
Gysegem, from a judgment of the Court of Claims of Ohio finding in favor of defendant-
appellee, Ohio State University Wexner Medical Center ("appellee" or "OSUWMC"), on
appellants' claims for medical negligence and loss of consortium.
{¶ 2} The following factual background is taken primarily from the findings of fact
set forth in the decision of the Court of Claims following a bench trial on the issues of
liability and damages. Appellants were married on September 15, 1995. During the last
five years, appellant John Timothy Gysegem (individually "Tim") "suffered pain resulting
from his surgeries at OSUWMC." (Decision at 2.)
No. 20AP-477 2
{¶ 3} In February 2015, Tim, who had previously been diagnosed with "monoclonal
B cell lymphocytosis," presented to the emergency room at OSUWMC after experiencing
abdominal pain and other symptoms. Patients suffering from monoclonal B cell
lymphocytosis "may have an increased risk of infection." (Decision at 3.)
{¶ 4} On February 23, 2015, a CT scan was performed on Tim, and a radiologist
noted "the CT scan showed an extraluminal collection containing an air-fluid level adjacent
to the appendix with an appendicolith in this region, measuring approximately 2.6 x 4.4
cm," and "consistent with a contained fluid collection secondary to perforated
appendicitis." In "layman's terms," an extraluminal collection is "an abscess." An
appendicolith is typically "a hardened ball of stool that may be a nidus for an infection."
(Decision at 3.)
{¶ 5} The OSUWMC emergency department requested a surgical consultation, and
Dr. Daniel Eiferman, who was the on-call surgeon on that date, responded to the emergency
department's request. Dr. Eiferman is "board certified in general surgery and surgical
critical care." According to the testimony of Dr. Eiferman, his practice typically consists of
"intra-abdominal surgeries—hernia, gallbladders, appendix, bowel restriction, ulcer
surgeries; cases like that." Dr. Eiferman estimated that "as of February 2015, he had
performed about 100 to 200 laparoscopic appendectomies." (Decision at 3.)
{¶ 6} On February 24, 2015, he performed a laparoscopic appendectomy on Tim at
OSUWMC. Dr. Eiferman "does not have a specific recollection" of the surgery he performed
on Tim, and the surgical note from that procedure "does not reference whether the
appendicolith identified in the CT scan of February 23, 2015 was removed during the
laparoscopic appendectomy." According to Dr. Eiferman "he would have used a surgical
instrument to get out what's inside that abscess cavity, that pus, any stones, any
inflammatory debris." On February 26, 2015, Tim was discharged from the hospital "with
instructions to follow up with Dr. Eiferman." (Decision at 4.)
{¶ 7} Two or three days after his discharge, Tim "became feverish, * * * started to
turn yellow, and * * * had pain in his right side." (Decision at 4.) Tim and appellant Cheryl
Gysegem (individually "Cheryl") returned to the emergency room at OSUWMC, and Tim
was readmitted to the hospital.
{¶ 8} On March 1, 2015, a CT scan was taken of Tim's abdomen and pelvis. A
physician reviewing the CT scan wrote "in a section labeled IMPRESSION; * * * Mild
No. 20AP-477 3
thickening and fluid attenuation inferior to the liver, bordering the right perinephric fascia.
There is a tiny density within this area of thickening, not seen previously." The physician
further noted: "Although well separated from the site of appendectomy, the findings may
reflect a small amount of complicated fluid, with a small calcification/calcified structure, of
uncertain relationship to the previously inflamed appendix." (Decision at 4.) The physician
also wrote: "Gallbladder mildly dilated, possibly due to fasting. Multiple dependent
gallstones again demonstrated. Choledocholithiasis is again demonstrated." (Decision at
5.)
{¶ 9} On March 3, 2015, Tim underwent "an endoscopic retrograde
cholangiopancreatography (ERCP) with sphincterotomy to evaluate a potential biliary
obstruction." The medical note "following the ERCP" indicated "numerous stones and
sludge were removed." An interventional radiology team was consulted "to aspirate a fluid
collection." On March 4, 2015, the radiology team "drained 10 ml of fluid, which was sent
for culture." (Decision at 5.)
{¶ 10} On March 9, 2015, Tim was discharged from OSUWMC "with instructions to
schedule a follow-up appointment with Dr. Eiferman." During that follow-up appointment,
Dr. Eiferman "recommended a laparoscopic cholecystectomy to remove [Tim's]
gallbladder." (Decision at 5.)
{¶ 11} On March 27, 2015, Tim underwent a laparoscopic cholecystectomy
performed by Dr. Eiferman at OSUWMC. A physician who assisted Dr. Eiferman dictated
a surgical note reviewed by Dr. Eiferman. The surgical note states that Tim's gallbladder
"was * * * placed into an EndoCatch bag, however, during removal from the umbilical port,
the EndoCatch bag did open. Despite this, the gallbladder was able to be removed out in
one complete piece." The note further states: "We searched around the surgical areas and
found that there was no evidence of any stones that had dropped or scattered in the
abdomen. The gallbladder fossa was then irrigated copiously." (Decision at 5.) Dr.
Eiferman "did not perform a complete peritoneal lavage based on concern that to do so may
result in adverse consequences, such as spreading bile in the body's cavity." (Decision at 5-
6.)
{¶ 12} Tim "began to have pain at the port site where the laparoscopic surgeries were
performed" and, subsequently, a green, pus fluid "began to drain from the port site on [his]
body." In October 2015, Tim met with Dr. Eiferman, and the physician ordered a CT scan
No. 20AP-477 4
of Tim's abdomen and pelvis. A physician who interpreted the CT scan noted "a fluid
collection with irregular thick soft tissue rim anteriorly in the anterior abdomen that tracks
into the periumbilical area with probable external communication. This could be a chronic
postoperative collection/hematoma. Superimposed infection is difficult to exclude. No
definite contrast noted within this collection." (Decision at 6.)
{¶ 13} On October 8, 2015, Dr. Eiferman performed "an exploratory laparotomy" on
Tim, "during which Dr. Eiferman found an abscess and seven calculi (stones) in [his] belly
button." Dr. Eiferman theorized "that the calculi must have somehow gotten out of the
gallbladder and became lodged in the area where Dr. Eiferman later discovered them." Dr.
Eiferman testified that he believed "the stones that were found in 2015 are likely related to
the gallbladder surgery." (Decision at 6.)
{¶ 14} In July 2016, Tim "experienced right upper quadrant pain." Dr. Jonathan R.
Wisler evaluated Tim "because Dr. Eiferman was unavailable." On July 21, 2016, Dr. Wisler
stated in a progress note he would order a CT scan "and RUQ ultrasound." (Decision at 6.)
{¶ 15} A physician reviewing a CT scan of July 22, 2016 wrote: "IMPRESSION:
1. Rim-enhancing septated fluid collection posterior to the right hepatic lobe. This is
amenable to percutaneous drainage. 2. A few small fluid collections are seen near the
transverse colon, too small for drain placement." (Decision at 7.)
{¶ 16} A physician who reviewed an ultrasound taken July 25, 2016 wrote:
"IMPRESSION: 1. No gallstones are seen in the visualized portion of the common bile duct.
2. Fluid collection posterior to the liver, similar to prior CT. This could represent a
hematoma or an abscess." (Decision at 7.) The reviewing physician discussed the results
with Dr. Eiferman on July 25, 2016.
{¶ 17} Dr. Eiferman consulted with members of an interventional radiology team
who "decided to aspirate the fluid collection in the right upper flank by means of ultrasound
guidance." This procedure, performed on July 27, 2016, "resulted in the aspiration of 300
milliliters of green purulent fluid and the placement of a drain." (Decision at 7.) On July 29,
2016, Tim was discharged with instructions to see Dr. Eiferman on August 9, 2016.
{¶ 18} Tim saw Dr. Eiferman as scheduled and the physician removed the drain
during the appointment. Dr. Eiferman, as well as other medical professionals at OSUWMC,
"periodically saw Tim * * * during the next twelve months or so." Tim then "underwent
removal of an abdominal wall abscess in October 2016, drainage of a chest wall abscess in
No. 20AP-477 5
November 2016, drainage of a perihepatic fluid collection in January 2017, and drainage of
an abdominal wall abscess in June 2017." (Decision at 7.)
{¶ 19} On August 15, 2017, Tim "presented to the OSUWMC emergency department
due to, among other things, shortness of breath, increasing fatigue, muscle aches, and
confusion." (Decision at 7.) A CT scan taken of Tim on August 16, 2017, "suggested:
Interval enlargement of loculated perihepatic fluid collection along the right posterior
lateral aspect of the liver. Sterility of this collection cannot be determined on CT." (Decision
at 8.)
{¶ 20} Dr. Steven M. Steinberg, the head of the surgery division, was consulted. Dr.
Steinberg is a professor of surgery at The Ohio State University, and he has held faculty
appointments at the State University of New York at Buffalo, Tulane University, and Case
Western Reserve University. He is a "self-described acute care surgeon," and estimated
that, "as of 2017, he had performed 'hundreds' of appendectomies and treatment of
ruptured appendixes and 'hundreds' of laparoscopic cholecystectomies." (Decision at 8.)
{¶ 21} Dr. Steinberg advised Tim and Cheryl that the CT scan "demonstrated an
abscess in an area not previously seen and that it had encompassed the right lung, had gone
through the diaphragm, and had invaded the chest." He recommended "an exploratory
laparotomy with an incision and drainage of the fluid collection." Dr. Steinberg "was
concerned at the time that there was retained, either stone or fecalith, that was causing the
abscess to recur." (Decision at 8.)
{¶ 22} On August 17, 2017, Dr. Steinberg performed "an exploratory laparotomy"
and "found the right lobe of [Tim's] liver adhered to the anterior abdominal wall."
According to a surgical note edited by Dr. Steinberg, "3-400 ml of pus was obtained; the
pus was cultured, suctioned, and irrigated until the fluid ran clear." Dr. Steinberg "explored
the abscess cavity using curettes and a finger, looking for foreign bodies such as retained
gallstones," but "[n]one were identified." (Decision at 8.) Dr. Steinberg "did not perform
a complete peritoneal lavage; instead he irrigated the abscess cavity, above the liver and on
the inside of the abscess cavity itself." (Decision at 8-9.)
{¶ 23} Dr. Steinberg saw Tim for follow-up care. In October 2017, Dr. Steinberg
ordered a CT scan because Tim "began to exhibit symptoms again, i.e., night sweats and
complaints of not feeling well." The report of the CT scan "indicated: 1. Interval resolution
of the perihepatic fluid collection identified on prior studies. Interval removal of the
No. 20AP-477 6
previously identified perihepatic drain. 2. Redemonstration of pneumobilia, likely related
to prior sphincterotomy and cholecystectomy. 3. Stable hyperdense lesions within the
bilateral kidneys, likely representing hemorrhagic or proteinaceous cysts.
4. Nonobstructive right renal calculi." (Decision at 9.)
{¶ 24} In December 2017, Dr. Steinberg ordered a CT scan because Tim's symptoms
had worsened. A CT scan, taken on December 19, 2017, "showed, among other things, a
new oval collection medial to the liver dome, which could have been a subphrenic abscess
or a sterile collection." (Decision at 9.)
{¶ 25} Dr. Steinberg requested the involvement of a thoracic surgeon regarding
Tim's care, and the surgeon recommended further surgery to drain the area identified on
the CT scan. During that surgery, Dr. Steinberg "drained the component of the abscess that
was in the abdomen and a thoracic surgeon drained the collection that was in the chest."
Dr. Steinberg "inquired of another surgeon about other possible approaches," but the other
surgeon "did not have any other ideas." (Decision at 9.)
{¶ 26} Dr. Steinberg last saw Tim during an office visit in January 2018. Dr.
Steinberg sent a letter wherein he terminated the physician-patient relationship after
appellants initiated this litigation.
{¶ 27} On January 26, 2018, appellants filed their complaint alleging claims for
medical malpractice and loss of consortium. The Court of Claims conducted a bench trial
beginning March 2, 2020. In addition to testimony by Tim and Cheryl, appellants
presented the testimony of their experts, Drs. Ralph Silverman and John Schaefer (whose
deposition testimony was read at trial). Appellee presented the testimony of Dr. Eiferman
and its experts, Dr. Steinberg and (by deposition) Dr. Hari Nathan.
{¶ 28} On September 8, 2020, the Court of Claims issued its decision, finding
appellants "have not proven by a preponderance of the evidence that OSUWMC should be
held liable for medical malpractice or a derivative loss of consortium." (Decision at 15.) In
its decision, the Court of Claims concluded that Dr. Eiferman "did not breach the standard
of care during the laparoscopic appendectomy by failing to remove the appendicolith that
was identified in the CT scan of February 23, 2015, based on the evidence presented and in
agreement with OSUWMC's experts." (Decision at 13.) The Court of Claims further
determined, with respect to the laparoscopic cholecystectomy, that Dr. Eiferman "met the
standard of care * * * when he searched the surgical areas and when, after he found no
No. 20AP-477 7
evidence of any gallstones that had dropped or scattered in the abdomen, he 'copiously'
irrigated the gallbladder fossa." (Decision at 14.) The decision of the Court of Claims was
journalized by judgment entry filed that same date.
{¶ 29} On appeal, appellants set forth the following three assignments of error for
this court's review:
I. THE TRIAL COURT'S JUDGMENT IN FAVOR OF THE
DEFENDANT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
II. THE TRIAL COURT ERRED IN CONSIDERING
SPECULATIVE EXPERT TESTIMONY IN VIOLATION OF
EVID.R. 702 AND 703.
III. THE TRIAL COURT ERRED IN PERMITTING HABIT
TESTIMONY IN VIOLATION OF EVID.R. 406.
{¶ 30} Under the first assignment of error, appellants contend the judgment of the
Court of Claims was against the manifest weight of the evidence. Appellants argue that all
witnesses agreed that, after the appendix was removed from Tim's right abdomen on
February 24, 2015, an object or stone was again found in his right abdomen on the CT scan
taken March 1, 2015. Appellants further argue the witnesses agreed the stone likely caused
the second abscess that Tim suffered and that was drained by Dr. Eiferman. Appellants
maintain the credible evidence presented indicates Dr. Eiferman was negligent in leaving
behind an appendicolith after the February 24, 2015 appendectomy.
{¶ 31} In general, "[c]ivil '[j]udgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence.' " Stanley v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 17, citing C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. A reviewing court " 'should not substitute
its judgment for that of the trial court when there exists * * * competent and credible
evidence supporting the findings of fact and conclusions of law rendered by the trial
judge.' " Id. at ¶ 8, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
In "considering whether a civil judgment is against the manifest weight of the evidence, an
appellate court is guided by a presumption that the findings of the trier of fact were correct."
Id., citing Seasons Coal Co. at 79-80. In this respect, " '[t]he underlying rationale of giving
deference to the findings of the trial court rests with the knowledge that the trial judge is
No. 20AP-477 8
best able to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.' " Id.,citing Seasons Coal Co. at 80.
{¶ 32} In order to succeed on a medical malpractice claim, a plaintiff must establish
by a preponderance of the evidence: "(1) the standard of care within the medical
community; (2) the defendant's breach of that standard of care; and (3) proximate cause
between the breach and the plaintiff's injuries." Gordon v. Ohio State Univ., 10th Dist. No.
10AP-1058, 2011-Ohio-5057, ¶ 66, citing Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-
Ohio-2776, ¶ 11. The "[p]roof of the recognized standards of the medical community must
be provided through expert testimony." Id., citing Bruni v. Tatsumi, 46 Ohio St.2d 127,
131-32 (1976).
{¶ 33} In Bruni, the Supreme Court of Ohio set forth the burden of proof in a
medical negligence case, stating as follows:
In order to establish medical malpractice, it must be shown by
a preponderance of evidence that the injury complained of was
caused by the doing of some particular thing or things that a
physician or surgeon of ordinary skill, care and diligence would
not have done under like or similar conditions or
circumstances, or by the failure or omission to do some
particular thing or things that such a physician or surgeon
would have done under like or similar conditions and
circumstances, and that the injury complained of was the direct
and proximate result of such doing or failing to do some one or
more of such particular things.
Id. at paragraph one of the syllabus.
{¶ 34} If a physician "was an employee or agent of appellee, then liability might be
imposed upon appellee for any negligent acts performed by that physician under the
doctrine of respondeat superior." Latham v. Ohio State Univ. Hosp., 71 Ohio App.3d 535,
537-38 (10th Dist.1991), citing Albain v. Flower Hosp., 50 Ohio St.3d 251, 254-55 (1990).
We note, in the instant case, the Court of Claims found "Dr. Eiferman was an agent of
OSUWMC (a medical center) when he provided care to Tim Gysegem," and therefore
"OSUWMC may be liable for any negligent acts performed by Dr. Eiferman under the
doctrine of respondeat superior." (Decision at 11.)
{¶ 35} Appellants argue the standard of care relative to the laparoscopic
appendectomy required Dr. Eiferman "to safely search for, retrieve, and remove any
No. 20AP-477 9
appendicoliths that may have escaped from the appendix into the peritoneal cavity, a
critical point." (Appellants' Brief at 18.) Appellants note the parties agreed in this case on
the proper standard of care, and the Court of Claims adopted the parties' view of that
standard. With respect to this issue, the Court of Claims held in part: "The court finds, and
the parties seemingly agree, that the standard of care for the laparoscopic appendectomy
required Dr. Eiferman to search for and remove the appendicolith identified in the pre-
surgery CT scan, so long as the appendicolith could be safely removed." (Decision at 12.)
{¶ 36} In asserting that the evidence indicates Dr. Eiferman left an appendicolith
behind after the laparoscopic appendectomy, appellants cite evidence that the CT scan
taken on February 23, 2015 (one day before Dr. Eiferman performed the surgery) revealed
ruptured appendicitis, and a radiologist warned about "an extraluminal collection
containing an air-fluid level adjacent to the appendix with an appendicolith in this region,
measuring approximately 2.6 x 4.4 cm * * * consistent with a contained fluid collection
secondary to perforated appendicitis." (Plaintiffs' Ex. B.) Appellants contend the evidence
is clear that a small, calcified structure appeared in a CT scan of Tim's abdomen on March 1,
2015. Appellants rely on the testimony of their primary expert, Dr. Silverman, who stated
that the structure appearing on the post-operative CT scan was "obviously from an
appendicolith." (Tr. at 91.) Appellants argue that their other expert, Dr. Schaefer, "likewise
opined" that the abscess identified on the March 2015 CT scan was "caused" by an
appendicolith. (Appellants' Brief at 20.) According to appellants, the object had to have
been the appendicolith, and that it was left behind after the appendectomy as a retained
foreign body. Appellants maintain the weight of the evidence favors the likelihood that Dr.
Eiferman left a foreign object behind.
{¶ 37} In response, appellee argues only one witness testified the object or stone
found on the March 1, 2015 CT scan was the appendicolith, and appellee notes the Court of
Claims found the testimony of that witness (Dr. Silverman) to be less than credible.
Appellee maintains that, in addressing the issue of whether appellants had proven by a
preponderance of the evidence that Dr. Eiferman failed to remove the appendicolith, the
Court of Claims properly relied on Dr. Eiferman's testimony regarding the procedure he
performed as well as testimony by defense expert witnesses comparing the findings of the
post-operative CT scan of March 1, 2015 to the findings of the pre-operative CT scan of
February 23, 2015.
No. 20AP-477 10
{¶ 38} In its decision finding in favor of appellee, the Court of Claims addressed and
found unconvincing Dr. Silverman's opinion testimony that "the calcified structure
identified on the CT scan of March 1, 2015, is an appendicolith." (Decision at 12.)
Specifically, the Court of Claims held in part:
A post-appendectomy CT scan (CT scan of March 1, 2015)
identified "a small calcification/calcified structure, of uncertain
relationship to the previously inflamed appendix"—not an
appendicolith. Hari Nathan, M.D. (an expert witness for
OSUWMC) testified that the calcification that is seen on the CT
scan of March 1st is in a different part of the abdomen, that the
calcification is contained within some inflammatory soft tissue,
and that the calcification is about half the size of what Dr.
Nathan measured the appendicolith to be. * * * Dr. Steinberg
(a fact witness and expert witness for OSUWMC) testified that
the calcification/calcified structure was smaller than the
previously identified appendicolith, so that "it's most likely not
the same thing." * * * Dr. Steinberg further noted that the
original appendicolith (and the structure identified in the CT
scan of March 1st) appeared to be calcified, and calcified
appendicoliths would not change very rapidly, if at all.
The court generally finds that Dr. Silverman's opinions are * * *
less credible than those offered by OSUWMC's expert
witnesses.
Dr. Eiferman's testimony that, during the laparoscopic
appendectomy he would have used a surgical instrument to
remove any inflammatory debris, is credible and persuasive for
the proposition that the appendicolith identified in the pre-
appendectomy CT scan likely was removed during the
laparoscopic appendectomy. The court concludes by
preponderance of the evidence that Dr. Eiferman did not
breach the standard of care during the lap[a]roscopic
appendectomy by failing to remove the appendicolith that was
identified in the CT scan of February 23, 2015, based on the
evidence presented and in agreement with OSUWMC's experts.
(Decision at 12-13.)
{¶ 39} As noted, appellants' theory of the case with respect to the laparoscopic
appendectomy was that the appendicolith, observed on the CT scan one day before the
appendix was removed, was still present in the CT scan on March 1, 2015 (i.e., appellants
argued that Dr. Eiferman was negligent in failing to remove an appendicolith, and that such
failure caused the patient's ongoing infections). By contrast, the experts for appellee opined
No. 20AP-477 11
that the calcified structure appearing on the post-operative CT scan of March 1, 2015, was
not the appendicolith observed on the pre-operative CT scan.
{¶ 40} At trial, Dr. Eiferman testified to the surgical procedure he performed in
removing Tim's appendix on February 24, 2015. Dr. Eiferman, who is board certified in
general surgery and critical care, stated the majority of his surgeries involve "intra-
abdominal, hernia, gallbladders, appendix, bowel restriction, [and] ulcer surgeries." (Tr. at
289.) He has performed approximately 100 to 200 laparoscopic appendectomies.
{¶ 41} Dr. Eiferman testified that he was the surgeon on call when Tim presented at
the hospital in February 2015. The patient had "right lower quadrant pain" that had been
"going on for several days." (Tr. at 297.) He was also experiencing fever and nausea. On
February 23, 2015, a CT scan indicated "appendicitis with a rupture of the appendix." (Tr.
at 298.) Dr. Eiferman noted that, when an appendix ruptures, "the body forms this
inflammatory reaction and tries to wall it off as best it can." (Tr. at 299.)
{¶ 42} Tim "had an abscess on the inside." (Tr. at 299.) The size of the abscess was
"approximately 2.6 x 4.4 centimeters," which Dr. Eiferman described as "[v]ery common
for ruptured appendicitis." (Tr. at 299-300.) The appendicolith was located inside the
abscess and measured between 6.7 to 7 millimeters.
{¶ 43} On reviewing the CT scan, Dr. Eiferman determined "the best course of
treatment" for the patient was to "safely get the appendix out and drain his abscess in one
operation." (Tr. at 308.) Dr. Eiferman decided to perform the surgery laparoscopically
rather than an open surgery procedure. At the time of the surgery, he had performed the
procedure "[p]robably in the hundreds by then." Although Dr. Eiferman did not recall this
specific appendectomy, he testified as to his "routine" for appendectomies. (Tr. at 309.)
He further testified that he had a habit or routine in situations in which an appendicolith is
inside an abscess.
{¶ 44} According to Dr. Eiferman, after identifying and removing the appendix, he
used a drain for the abscess to "remove what's inside the abscess cavity." (Tr. at 315.) He
described the use of a suction irrigator to break up the inflammatory tissue, testifying that
he broke up the "mesoappendix from the surrounding inflammation" and then used the
irrigator. The suction device is "roughly a centimeter, or 10 millimeters." (Tr. at 316.) At
the end of the appendectomy procedure, the abdomen is irrigated using the same device.
No. 20AP-477 12
{¶ 45} Dr. Eiferman testified the standard of care requires a physician to "try, if it
is safe, to remove an appendicolith or fecalith at the time of the surgery." The reason for
removing an appendicolith or fecalith is because they are "a nidus for infection." (Tr. at
320.) He was confident the appendicolith "would not have migrated outside of the abscess."
Dr. Eiferman stated "the body tries pretty hard to wall things off" to prevent the spread of
infection. (Tr. at 323.) He opined that, had the appendicolith or fecalith not been removed
during the appendectomy, it would have been "present on subsequent CT scans." (Tr. at
324.) Dr. Eiferman testified that Tim "had multiple CT scans after the appendectomy" and
there was "no evidence of fecalith on any of them." (Tr. at 325.)
{¶ 46} On cross-examination, Dr. Eiferman agreed that on March 1, 2015, Tim was
showing symptoms of infection, and that he probably had bacteria in the peritoneum. He
stated Tim's abscess "came from his ruptured appendix." (Tr. at 357.) He agreed that a CT
scan of March 1, 2015 indicated a calcified structure. According to Dr. Eiferman, the
structure was "well separated from the side of the appendectomy, bordering the perinephric
fascia inferior to the liver," or on the right side below the liver. (Tr. at 358.)
{¶ 47} Appellants' trial expert witness, Dr. Silverman, stated the standard of care
requires that a foreign body, if it can be identified, must be removed; specifically, that
appendicoliths are to be removed if they can be found and identified. He stated it is
"particularly important to make sure that that stone or appendicolith that is perforated now
on the outside is gone." (Tr. at 76.)
{¶ 48} Dr. Silverman testified that the CT scan taken March 1, 2015, following the
appendectomy surgery, "essentially showed * * * an abscess." (Tr. at 87.) He stated there
was "a stone on there that wasn't seen before. And so it actually was seen before, but it - -
it's just one of these things that it migrated, moved around." He stated "this thing has
moved from where it was in the right lower quadrant to a different location." (Tr. at 88.)
Dr. Silverman opined that the object was "an appendicolith." (Tr. at 91.)
{¶ 49} Dr. Silverman testified he did not see an appendicolith in the 14 other scans
performed after the March 1 scan. He opined that the appendicolith "moved" between the
time of the CT scan taken on February 23, 2015, and the CT scan taken on March 1, 2015.
(Tr. at 156.) Dr. Silverman agreed that the radiologist who reviewed the March 1, 2015 CT
scan did not mention an appendicolith, and he further agreed that none of the radiologists
who reviewed the 14 CT scans since March 1, 2015 identified or mentioned an
No. 20AP-477 13
appendicolith. Dr. Silverman acknowledged that a re-accumulation of an abscess can be a
recognized complication for a patient with a perforated appendix.
{¶ 50} Appellee presented the testimony of two medical experts, Drs. Steinberg and
Nathan. Dr. Steinberg is a surgeon and professor of surgery at The Ohio State University.
He is board certified in surgery and critical care, and currently practices acute care surgery.
Dr. Steinberg has performed "hundreds" of appendectomy procedures, including the
treatment of ruptured appendices. (Tr. at 436.)
{¶ 51} At trial, Dr. Steinberg testified there are a "number of potential
complications" with respect to a ruptured appendix. The main complication is infection,
"either intra-abdominal infection or wound infection," as well as "a risk of bowel
obstruction later from adhesions." The treatment of a ruptured appendix generally requires
removal of the appendix and to "wash out whatever pus there is in the area." (Tr. at 442.)
{¶ 52} A patient with a ruptured appendix is more likely to develop subsequent
abscesses, and he estimated that approximately "10 to 15 percent" of patients develop
abscesses. (Tr. at 443.) According to Dr. Steinberg, once a patient has an abscess, "there's
always a risk of developing recurrent abscesses regardless of how the initial one is treated."
(Tr. at 443-44.) He stated it is "frequently impossible to remove all that non-viable tissue,
which then allows for the growth of more bacteria within it and therefore a second abscess."
Dr. Steinberg defined a fecalith as "a piece of material that can range anywhere from just a
little piece of stool to a small calcification that is in the lumen of the appendix." (Tr. at 444.)
A rupture can cause an appendicolith or fecalith to come out of the appendix.
{¶ 53} He testified as to the standard of care for treating a ruptured appendix, noting
the first step is to "remove the appendix safely." Second, "if you believe that there is a
fecalith present prior to surgery, you should try to make sure that it's removed. If that
doesn't seem to be within the specimen, you should look around for it." (Tr. at 445.)
{¶ 54} Dr. Steinberg testified that he reviewed the CT scan of February 23, 2015; at
trial, the witness identified the fecalith appearing on that scan, and he noted it "measures
about 6 millimeters * * * in diameter." (Tr. at 460.) Dr. Steinberg also reviewed
approximately 17 or 18 subsequent CT scans of Tim. In reviewing the CT scan taken on
March 1, 2015, he noted remarks regarding a calcified structure. When asked whether the
calcification was an appendicolith or fecalith, Dr. Steinberg testified: "It's not the same size
of the appendicolith that we saw. It's smaller. So it's most likely not the same thing that we
No. 20AP-477 14
were calling the appendicolith." (Tr. at 463-64.) He stated that a calcified appendicolith
would not "change very rapidly, if at all." (Tr. 464.)
{¶ 55} When questioned about Dr. Silverman's testimony that certain images might
be an appendicolith, Dr. Steinberg stated he could not identify an appendicolith, and that
he was "not sure exactly what [Dr. Silverman's] referring to." (Tr. at 464.) Dr. Steinberg
stated that the image at issue indicated "white stuff * * * inside the lumen of the cecum,"
and that it "couldn't possibly be a fecalith." (Tr. at 466.)
{¶ 56} Dr. Steinberg stated that the cause of the abscess "virtually has to be related
to the ruptured appendix." According to Dr. Steinberg, "just a few days before" Tim "had a
ruptured appendix," and "[h]e would have no other reason for having an abscess in the
same location of the ruptured appendix that would be causing an abscess." (Tr. at 467.)
{¶ 57} Dr. Steinberg opined it was appropriate for Dr. Eiferman to remove the
appendix on February 24, 2015 as "part of the treatment of ruptured appendicitis." (Tr. at
467.) When asked to assume testimony by Dr. Eiferman that it was his typical practice to
remove any appendicolith he was able to observe, Dr. Steinberg opined that Dr. Eiferman
did not violate the standard of care. According to Dr. Steinberg, "[y]ou have very few
alternatives if you can't find it." (Tr. at 468.) The expert testified that "it still meets the
standard of care if you've tried to find an appendicolith but you are unable to do so and that
you leave it in the abdomen." (Tr. at 468-69.)
{¶ 58} Appellee's other expert, Dr. Nathan, is board certified in general surgery and
in surgical oncology. He currently has a practice in gastrointestinal surgery, including
"pancreatic resections, * * * liver resections, * * * gallbladder resections, bile duct
resections, and * * * occasionally complex surgical problems that others may not feel as
comfortable handling." (Nathan Depo. at 7.)
{¶ 59} Dr. Nathan testified that a post-surgical abscess is "not an uncommon
complication of any surgery that violates the gastrointestinal tract, and typically the
treatment is dictated by how sick or stable the patient is." He stated "[m]ost commonly we
treat those kinds of abscesses with percutaneous drainage, so not necessarily going back to
the operating room but having interventional radiology insert drains." Antibiotics are often
used "as an adjunct to that, at least for a limited time." (Nathan Depo. at 8.)
{¶ 60} A post-surgical abscess can result from the presence of bacteria that "can
come from any number of places," and which "the body then tries to wall off as part of a
No. 20AP-477 15
natural reaction to that." (Nathan Depo. at 8.) He described an appendicolith as typically
"a stone-like structure that is found in the appendix," most commonly consisting of
"hardened feces." In the case of a ruptured appendix, an appendicolith may remain in the
appendix or it "can spill out of the appendix." If a surgeon is aware of an appendicolith
outside the appendix, it is "best to remove it." (Nathan Depo. at 17.)
{¶ 61} Regarding the February 2015 appendectomy surgery performed by Dr.
Eiferman, Dr. Nathan testified he had reviewed "the medical records consisting of clinic
notes, radiology reports, pathology reports, operative notes, other procedure reports," and
he also reviewed images from "CT scans." (Nathan Depo. at 24.) In reviewing the CT scan
taken February 23, 2015, Dr. Nathan "saw a radiopaque object that appeared to be an
appendicolith," and he "measured the size of that." The object measured "[s]ix millimeters
in greatest dimension." (Nathan Depo. at 25.)
{¶ 62} Dr. Nathan also reviewed the CT scan of March 1, 2015, and he "did not" see
the six-millimeter appendicolith that he had measured on the CT scan of February 23, 2015.
He stated that "[i]n the vicinity where the previous collection and appendicolith had been,
there was a small fluid collection." The measurement was "[t]hree millimeters in greatest
dimension." (Nathan Depo. at 26.) When asked his opinion whether the two objects were
the same from the two different CT scans taken approximately one week apart, Dr. Nathan
stated: "I do not think those are the same object, no." (Nathan Depo. at 27.)
{¶ 63} With respect to his opinion as to the cause of the abscess indicated on the
March 1 CT scan, Dr. Nathan testified: "An abscess after perforated appendicitis isn't
uncommon just from the spillage of bacteria, and I suspect that there was residual bacteria
causing that abscess to happen." (Nathan Depo. at 27.)
{¶ 64} Dr. Nathan opined it was appropriate for Dr. Eiferman to remove Tim's
appendix on February 24, 2015, as the patient "presented with symptoms consistent with
perforated appendicitis, and not operating would have run the risk of ongoing
contamination of the abdomen and him getting sicker." (Nathan Depo. at 27.) Dr. Nathan
opined Dr. Eiferman met the standard of care in performing the laparoscopy
appendectomy. He stated "it appeared that [Dr. Eiferman] used the appropriate technique
to divide the appendix and to remove it from the cecum as well as to divide the blood supply
to the appendix." (Nathan Depo. at 29.)
No. 20AP-477 16
{¶ 65} Dr. Nathan did not observe an appendicolith on subsequent CT scans, and he
concluded it was "removed at the time. There's nowhere else that it could have gone."
According to Dr. Nathan, if the appendicolith had still been present after the February 24,
2015 appendectomy, he would expect to have seen it on the CT scan of March 1, 2015, but
he "did not." (Nathan Depo. at 29.) He further noted the radiologist "did not" report an
appendicolith on that film. (Tr. at 30.) Dr. Nathan opined that Dr. Eiferman removed the
appendix and its contents.
{¶ 66} Dr. Nathan testified that the standard of care in order to identify an
appendicolith during the appendectomy procedure required "an examination in the
immediate vicinity of the appendix and where the known spillage was," as well as
"evacuation of the obviously spilled contents of stool." He stated it was not part of the
standard of care to explore other areas of the peritoneal cavity other than the specific area
of the appendix. Dr. Nathan noted that the "contamination is most commonly localized to
that area of the abdomen, the right lower quadrant, and in the absence of any evidence to
the contrary * * * there's no reason to be exploring the rest of the abdomen in that situation."
(Nathan Depo. at 31.) He cited "the possibility that in irrigating, one can take bacteria that
are localized to the right lower quadrant and cause them to spread to other areas of the
abdomen, creating a new problem that wasn't there before." (Nathan Depo. at 32.)
{¶ 67} Dr. Nathan testified that an abscess is a recognized complication of a
ruptured appendix. According to Dr. Nathan, "[d]espite one's best efforts to remove that
contamination, you can never sterilize that area of the abdomen, there's always going to be
some bacteria left behind, and if there's enough, then that can cause an abscess to form."
(Nathan Depo. at 34.) Dr. Nathan did not have an opinion as to why Tim continued to have
abscesses, but he opined that the procedures utilized by appellee's medical personnel in
treating Tim's abscess formation during that time "was completely appropriate." (Nathan
Depo. at 45.)
{¶ 68} During examination by appellants' counsel, Dr. Nathan disagreed that the
calcification found on the March 1, 2015 CT scan was consistent with the appendicolith
identified on the February 23, 2015 CT scan. According to Dr. Nathan, "the idea that a six-
millimeter calcified structure could shrink to three millimeters within a week is
implausible." (Nathan Depo. at 78.) He further stated "calcified objects don't shrink over
such a course of time. The calcium doesn't just dissolve." (Nathan Depo. at 98.)
No. 20AP-477 17
{¶ 69} During further examination by counsel for appellee, Dr. Nathan stated: "The
radiopaque object on the * * * February CT was contained within an abscess not very far
from the appendix, and so I think the most likely etiology of that is that it was an
appendicolith." He further stated that "[t]he tiny calcification that's seen on the March 1st
CT scan is in a different part of the abdomen. It is contained within some inflammatory
soft tissue, and it's half the size of what I measured the appendicolith to be about a week
earlier. So I think it's not the appendicolith." (Nathan Depo. at 97.)
{¶ 70} As noted, appellants' theory of liability with respect to the appendectomy
surgery was that Dr. Eiferman was negligent in failing to remove an appendicolith during
the laparoscopic appendectomy performed on February 24, 2015. Here, the parties did not
disagree with the Court of Claims' determination that the standard of care in performing
the appendectomy required Dr. Eiferman to search for and remove the appendicolith
identified in the pre-operative CT scan, as long as it could be safely removed. The primary
issue in dispute was whether the object identified on the post-operative CT scan was the
appendicolith identified on the pre-operative CT scan. As indicated, appellants' expert, Dr.
Silverman, testified that the calcified structure appearing on the CT scan of March 1, 2015
was "an appendicolith." (Tr. at 91.) By contrast, both experts for appellee disagreed, stating
that the object observed on the March 1, 2015 CT scan was not the appendicolith shown on
the pre-operative CT scan taken approximately one week earlier.
{¶ 71} As set forth above, in its decision, the Court of Claims found persuasive the
testimony of Dr. Nathan, who stated the calcification observed on the March 1, 2015 CT
scan was in "a different part of the abdomen, * * * contained within some inflammatory soft
tissue," and that it was "about half the size of what Dr. Nathan measured the appendicolith
to be." The court also found persuasive the testimony of Dr. Steinberg, citing that expert's
testimony that the calcified structure was "smaller than the previously identified
appendicolith," and that it was "most likely not the same thing." The Court of Claims
further cited Dr. Steinberg's testimony that the original appendicolith "appeared to be
calcified, and calcified appendicoliths would not change very rapidly, if at all." (Decision at
12.)
{¶ 72} By contrast, the Court of Claims found the testimony of Dr. Silverman "less
credible" than those offered by appellee's experts. (Decision at 12.) Specifically, the court
found that Dr. Silverman lacked the credentials of the opposing experts.
No. 20AP-477 18
{¶ 73} The record also indicates Dr. Silverman was the only expert who opined that
an appendicolith appeared on the post-operative CT scan taken March 1, 2015. In this
respect, we note the testimony of Dr. Silverman conflicted with the opinion of appellants'
other expert, Dr. Schaefer, whose deposition testimony was read into the record at trial.
When questioned as to whether, following the laparoscopic appendectomy, the
appendicolith was identified in any subsequent post-operative CT scans, Dr. Schaefer
responded: "To my knowledge, no." When asked whether he had an explanation for that,
Dr. Schaefer stated: "It dissolved." (Tr. at 551.)
{¶ 74} The instant case, "in simple terms, was a battle of the experts" as to whether
the standard of care was breached. Beranek v. Shope, 7th Dist. No. 20 BE 0011, 2020-
Ohio-7024, ¶ 34. In such a case, in which "the issue of whether the defendant has employed
the requisite care must be determined from the testimony of experts," it was "within the
province of the trier of fact to weigh the medical testimony and to resolve the conflicting
opinions." Gordon at ¶ 77. As outlined above, appellants presented the testimony of their
experts, including Dr. Silverman, who opined that an appendicolith was found on the post-
operative CT scan. Appellee, however, presented controverting evidence through the
testimony of its medical experts who both concluded the object found on the post-operative
scan was not the appendicolith identified on the pre-operative CT scan, and who further
testified that Dr. Eiferman met the standard of care in performing the laparoscopic
appendectomy. Here, the record contains competent, credible evidence which, if believed,
supports a determination that Dr. Eiferman did not breach the standard of care. While
appellants presented contrary evidence, it was within the sole province of the trier of fact to
weigh the credibility of the witnesses and to resolve the conflicts in the evidence, including
conflicting testimony on the factual issue whether an appendicolith remained following the
laparoscopic appendectomy. Based on the record presented, we are unable to conclude the
trier of fact lost its way and rendered an opinion which was clearly against the manifest
weight of the evidence.
{¶ 75} Appellants' first assignment of error is not well-taken and is overruled.
{¶ 76} We will address appellants' second and third assignments in inverse order.
Under the third assignment of error, appellants assert the Court of Claims erred in
permitting habit testimony in violation of Evid.R. 406. Specifically, appellants argue the
Court of Claims erred in permitting Dr. Eiferman to testify that his habit would have been
No. 20AP-477 19
to remove all appendicoliths during an appendectomy. Appellants further contend the
Court of Claims permitted this testimony over appellants' objection and without Dr.
Eiferman providing the necessary foundation to meet the requirements of Evid.R. 406.
{¶ 77} Evid.R. 406, which governs the admissibility of habit evidence, states:
"Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that
the conduct of the person or organization on a particular occasion was in conformity with
the habit or routine practice." A habit has been "defined as a person's regular practice of
meeting a particular kind of situation with a specific type of responsive conduct." Mulford-
Jacobs v. Good Samaritan Hosp., 1st Dist. No. C-950634 (Nov. 20, 1996), citing
McCormick, Evidence, Section 195, at 825 (4 Ed.Strong Ed. 1992).
{¶ 78} It has been noted that "[t]he rationale for the admission of evidence of habit
pursuant to Evid.R. 406 is that habitual acts may become semi-automatic and may tend to
prove one acted in the particular case in the same manner." Bollinger, Inc. v. Mayerson,
116 Ohio App.3d 702, 715 (1st Dist.1996). In order for evidence of habit to be admissible at
trial, "it must establish a regular or routine practice," and "[e]vidence as to one or two
isolated occurrences does not establish a sufficient regular practice for admission pursuant
to Evid.R. 406." Id., citing Cannell v. Rhodes, 31 Ohio App.3d 183 (8th Dist.1986); Bolan
v. Adams, 19 Ohio App.3d 206 (11th Dist.1984). Further, "[t]he proponent of habit
evidence must first establish that the habit in fact exists and then show that the stimulus
for the habitual response occurred on a particular occasion." Id.{¶ 79} Under Ohio law, Evid.R. 406 "has been applied in * * * medical contexts to
establish that the witness's routine practice was adhered to in the situation before the court
as to which the witness has no particular recollection." Burris v. Lerner, 139 Ohio App.3d
664, 671 (8th Dist.2000).1 See, e.g., Brokamp v. Mercy Hosp., 132 Ohio App.3d 850, 865
1 Courts in other jurisdictions have similarly applied habit evidence in the context of medical negligence
actions. See, e.g., Kornberg v. United States, 693 Fed.Appx. 542, 544 (9th Cir.2017) (habit evidence
admissible as "doctors' testimony concerning their typical practices was the type of testimony that can be
admitted under [Fed.R.] 406" in case where physician testified "she had performed approximately 40
stapedectomies"); Hamilton v. Winder, La.App. No. 2004 CA 2644R (May 4, 2007) (physician's habit
testimony was relevant "to show his practice regarding drain removal and that he followed this practice");
Rosebrock v. E. Shore Emergency Physicians, LLC, 221 Md.App. 1, 22 (2015) (trial court did not err in
admitting physician's testimony as habit evidence where testimony included how physician cleared patient's
spine, that she did it the same way each time, and the "large number of times that she performed the
procedure"); McCormack v. Lindberg, 352 N.W.2d 30, 35 (Ct.App.Minn.1984) (habit evidence admissible;
"[a]s long as it is clear that [physician] is not testifying specifically about an operation he cannot remember,
he should be allowed to tell the jury how he usually performs a first rib resection").
No. 20AP-477 20
(1st Dist.1999) (trial court did not err in admitting, under Evid.R. 406, testimony by nurse
regarding his normal routine for providing injection to patient where nurse had no
recollection of event and nothing in record suggested he did not act "pursuant to his normal
custom" on the date in question); Teague v. St. Luke's Hosp., 8th Dist. No. 59920 (Mar. 26,
1992) (trial court did not abuse its discretion in admitting, under Evid.R. 406, testimony by
phlebotomist regarding blood drawing procedure where witness had no independent
memory of event and where "evidence was sufficient to show that [witness] engaged in the
behavior regularly enough to make it probable that he behaved that way when drawing
Appellant's blood").
{¶ 80} In the present case, during direct examination of Dr. Eiferman, the following
exchange occurred:
Q. Okay. Now, give us an idea, Dr. Eiferman, how many
laparoscopic appendectomies you had performed by this point
in your career.
I'm talking about February of 2015.
A. Probably in the hundreds by then, so 1 to 200.
Q. And you mentioned during your deposition that you don't
have a specific recollection of this appendectomy.
Do you at least have a routine as to how you approach the
procedure?
A. That is true. I do not remember this specific appendectomy.
But I feel comfortable talking to you about my routine to
appendectomies.
Q. All right. And have you reviewed your operative note to
prepare for your testimony today?
A. * * * I have.
Q. And can you tell us whether or not your operative report
actually reflects your routine or what you would typically do
with the laparoscopic appendectomy?
A. It does. It reads pretty well.
It talks about identifying the appendix and firing at the base
with the stapler. I go on in there to say that I had to separate
the mesoappendix bluntly from the inflammation. That's the
No. 20AP-477 21
abscess cavity that we are talking about that needs to be
separated out and broken up. Then I removed the appendix.
And due to the abscess, I left the drain in there to try and
prevent a future infection.
(Tr. at 309-10.)
{¶ 81} Dr. Eiferman testified as to how he would have used the "suction irrigator"
instrument to "break up inflammatory tissue." (Tr. at 315.) He described for the court how
he placed and operated the instrument, and how "the pus, the air, the fecalith, gets sucked
out into this right here and goes into the suction canister right there." (Tr. at 316.)
{¶ 82} Dr. Eiferman was further questioned on direct examination as follows:
Q. When you have an appendicolith that is inside the abscess,
do you have a habit or routine in how you approach it and what
you do?
A. I do.
Q. And what is that, please?
A. It would be as I just described to you. It would be to use the
instrument right there. You want to get out what's inside that
abscess cavity, that pus, any stones, any inflammatory debris.
You want to suck that out and that would be the routine.
(Tr. at 317.)
{¶ 83} "In the absence of plain error, a failure to object to evidence presented at trial
constitutes a waiver of any challenge on that evidence on appeal." Barnett v. Thornton,
10th Dist. No. 01AP-951, 2002-Ohio-3332, ¶ 14, citing State v. Robertson, 90 Ohio App.3d
715, 728 (2d Dist.1993).
{¶ 84} Contrary to appellants' contention, the record does not indicate any objection
was made at trial to the above testimony regarding the physician's habit or routine in
performing a laparoscopic appendectomy. As cited above, Dr. Eiferman testified he lacked
a memory of the specific appendectomy in this case, but the witness, who stated he had
performed between 100 and 200 laparoscopic appendectomies, testified as to his routine
for performing this surgery. He also described in detail the procedure he utilizes in
irrigating with a suction device, demonstrating his routine for the court. Here, evidence
regarding the physician's usual practice in performing a laparoscopic appendectomy was
relevant, and the trier of fact was entitled to determine what weight to accord to such
No. 20AP-477 22
evidence. Again, no objection was raised to the testimony at issue, as to either relevance or
purported lack of foundation, and we conclude the Court of Claims did not commit error,
plain or otherwise, in permitting Dr. Eiferman's habit testimony.
{¶ 85} Appellants' third assignment of error is without merit and is overruled.
{¶ 86} Under the second assignment of error, appellants contend the Court of
Claims impermissibly permitted Dr. Nathan and Dr. Steinberg to provide speculative
expert testimony, in contravention of Evid.R. 702 and 703, regarding whether Dr. Eiferman
observed the standard of care in performing the appendectomy and the supposed removal
of the appendicolith. With respect to the testimony of Dr. Nathan, appellants point to a
response by this medical expert during direct examination in which he stated: "So it
appeared that [Dr. Eiferman] used appropriate technique to divide the appendix and to
remove it from the cecum as well as to divide the blood supply to the appendix. My
understanding is that it's his usual practice and it would be for most surgeons to evacuate
any spillage from that area, and that would include a stone." (Nathan Depo. at 29.)
According to appellants, Dr. Nathan's testimony is speculative and depends on the
assumption Dr. Eiferman actually followed through with his "habit." (Appellants' Brief at
29.) Appellants similarly contend the testimony of Dr. Steinberg was speculative, citing to
this expert's answer to a question during direct examination in which he was asked to
assume Dr. Eiferman testified it was his typical practice to remove any appendicolith he
was able to observe. In response, Dr. Steinberg stated in part: "If that is what he says the
standard treatment is, and it makes sense that it would be, then no, I don't think he violated
the standard of care." (Tr. at 468.)
{¶ 87} In response, appellee argues appellants failed to object to the testimony they
now claim was speculative, preserving all but plain error. Appellee further argues it
presented significant expert testimony on the issue of whether Dr. Eiferman complied with
the standard of care by removing the appendicolith and that, prior to expressing their
respective opinions, each defense expert was instructed not to voice an opinion unless it
was held to a reasonable degree of medical probability.
{¶ 88} In general, the admission or exclusion of evidence is governed by the rules of
evidence. See, e.g., State v. McGovern, 6th Dist. No. E-08-066, 2010-Ohio-1361, ¶ 33
("Admission of witness testimony is governed by the Ohio Rules of Evidence."). In this
respect, a reviewing court must simply determine whether the trial court's ruling on an
No. 20AP-477 23
evidentiary issue was correct or not based upon application of the rule and, in this sense,
presents a question of law. See State v. Depew, 136 Ohio App.3d 129, 132 (4th Dist.1999)
("when a party challenges the trial court's construction of an evidentiary rule, he presents
a question of law that we review de novo"). Thus, although this court sometimes speaks in
terms of a trial court's discretion in addressing the interpretation of a rule, it is not
discretionary in most instances. Stated otherwise, in interpreting the rules of evidence, "no
court has the authority, within its discretion, to commit an error of law." State v. Chandler,
10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8.
{¶ 89} Evid.R. 702(B) states in part that a witness may testify as an expert if such
witness "is qualified as an expert by specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony." Evid.R. 703 states: "The facts or
data in the particular case upon which an expert bases an opinion or inference may be those
perceived by the expert or admitted in evidence at the hearing." Under Ohio law,
"[e]vidence in the form of expert testimony is admissible if the witness has 'scientific,
technical, or other specialized knowledge' that will assist the trier of fact in understanding
the evidence or determining a question of fact." Witherby v. G.A. Avril Co., 1st Dist. No. C-
930493 (June 30, 1994), quoting Evid.R. 702.
{¶ 90} In challenging the testimony of Dr. Nathan as speculative, we note appellants
rely in part on the testimony of their own expert (Dr. Silverman) to argue the appendicolith
"would have gone back into the area near Tim's liver where it was found on the March 1 CT
scan." (Appellants' Brief at 29.) Further, appellants challenge this expert's response as
predicated on the assumption Dr. Eiferman actually followed through with his habit or
routine in performing the procedure. We have previously found, however, the Court of
Claims did not err in admitting the habit evidence under Evid.R. 406. Moreover, courts
have held that whether a physician's "habitual response in fact occurred" in a particular
case is a "question of weight and credibility for the trier of fact." Mulford-Jacobs.
{¶ 91} As to the testimony of Dr. Steinberg, and contrary to appellants' assertion, no
objection was made at trial to the testimony of this expert witness, cited above, regarding
the issue of standard of care. The opinion testimony of Dr. Steinberg, however, was
premised on his assumption that Dr. Eiferman followed his standard routine/habit in
performing the laparoscopic appendectomy. Again, we have concluded such evidence was
properly before the court, and the record indicates the trier of fact credited Dr. Eiferman's
No. 20AP-477 24
testimony that he "would have used a surgical instrument to remove any inflammatory
debris." The Court of Claims was entitled to determine the weight to be accorded this
testimony. Further, the Court of Claims did not err in considering the opinion testimony
of Dr. Steinberg regarding the standard of care, based upon such underlying facts and
evidence.
{¶ 92} The record indicates that the testimony of appellee's experts, previously
recounted in addressing the first assignment of error, was based on their education,
training, experience and the facts and evidence in the record. Both Dr. Steinberg and Dr.
Nathan testified as to the standard of care for treating a ruptured appendix, and both
witnesses opined as to whether an object identified on the March 1, 2015 post-operative
scan was the same appendicolith identified on the pre-operative scan. Both experts also
explained the basis of their opinions, and the evidence was not speculative. Accordingly,
while it was up to the trier of fact to assess the credibility of this evidence, we find no error
by the trial court in admitting the testimony at issue.
{¶ 93} Appellants' second assignment of error is not well-taken and is overruled.
{¶ 94} Based on the foregoing, appellants' three assignments of error are overruled,
and the judgment of the Court of Claims of Ohio is affirmed.
Judgment affirmed.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.
___________________