Gysegem v. Ohio State Univ. Wexner Med. Ctr.

[Cite as Gysegem v. Ohio State Univ. Wexner Med. Ctr., 2020-Ohio-4910.]
JOHN GYSEGEM, et al. Case No. 2018-00113JD
Plaintiffs Judge Patrick M. McGrath
v. DECISION
OHIO STATE UNIVERSITY WEXNER
MEDICAL CENTER
Defendant
Introduction
{¶1} Plaintiffs John (“Tim”) Gysegem and Cheryl Gysegem bring claims of
medical negligence and loss of consortium against defendant Ohio State University
Wexner Medical Center (OSUWMC). The Gysegems’ claims arise from two surgeries
at OSUWMC that Daniel Eiferman, M.D. performed on Tim Gysegem—a laparoscopic
appendectomy on February 24, 2015, and a laparoscopic cholecystectomy on
March 27, 2015. The Gysegems contend that Dr. Eiferman failed to remove an
appendicolith during the laparoscopic appendectomy. Plaintiffs also contend that
Dr. Eiferman failed to thoroughly search for gallstones after gallstones spilled from
an EndoCatch bag during the laparoscopic cholecystectomy and that Dr. Eiferman
failed to thoroughly irrigate Gysegem’s abdominal cavity during the laparoscopic
cholecystectomy. The Gysegems maintain that Dr. Eiferman’s alleged medical
negligence during the laparoscopic surgeries proximately caused Tim to sustain
abdominal infections and proximately caused Cheryl to sustain a loss of consortium.
{¶2} The case proceeded to a bench trial on issues of liability and damages. The
court permitted the parties to submit proposed findings of fact and proposed
conclusions of law. The court ordered the parties in their post-trial submissions to
briefly address the Gysegems’ request to submit into evidence an unfiled discovery
deposition of Matthew Matasar, M.D., M.S.
Case No. 2018-00113JD -2- DECISION
{¶3} Both parties filed proposed findings of fact and proposed conclusions of law.
The Gysegems, however, have not addressed in their post-trial filing their request to
submit into evidence the discovery deposition of Dr. Matasar. OSUWMC maintains in
its post-trial filing that the Gysegems have failed to comply with Civ.R. 32(A) (use of
depositions in court proceedings). OSUWMC asserts that the Gysegems therefore are
precluded from submitting into evidence any portion of Dr. Matasar’s testimony from the
deposition.
{¶4} Pursuant to Civ.R. 32(A), every deposition intended to be presented as
evidence “must be filed at least one day before the day of trial or hearing unless for
good cause shown the court permits a later filing.” See Moretz v. Muakkassa, 137 Ohio
St.3d 171, 2013-Ohio-4656, 998 N.E.2d 479, ¶ 46 (trial courts “have a duty to ensure
proper adherence to the governing rules, including Civ.R. 32(A), in order to afford
fairness to all parties”). The court finds that the Gysegems have not shown good cause
to permit the filing of Dr. Matasar’s deposition into evidence.
I. FINDINGS OF FACT
{¶5} The Gysegems were married on September 15, 1995. (Tr., 192.) During
the last five years Tim Gysegem suffered pain resulting from his surgeries at OSUWMC.
(Tr., 258.) Tim’s surgeries and complications from the surgeries have affected the
Gysegems’ marriage. (Tr., 221-222, 226, 258.)
{¶6} Tim Gysegem previously worked as an x-ray technician; he has worked as
an associate in the plumbing department of Lowe’s since February 2019. (Tr., 250,
251, 258.) Cheryl Gysegem has been a nurse since 1989. (Tr. 192.) At some point
Cheryl stopped working full-time so that she could care for Tim because she was
familiar with what Tim had undergone and because she thought that she, instead of a
home health nurse, had a better sense of changes that may have been happening to
Tim. (Tr., 215.) On August 1, 2016, Cheryl Gysegem (who became a certified nurse
consultant in 2011) retired from a nursing position at OSUWMC. (Tr., 222-223.)
Case No. 2018-00113JD -3- DECISION
A. Laparoscopic Appendectomy in February 2015 at OSUWMC
{¶7} In February 2015 Tim Gysegem—who has been diagnosed with, among
other things, monoclonal B cell lymphocytosis—presented to the emergency room at
OSUWMC after he experienced abdominal pain and other symptoms, including fever
and nausea. (Joint Exhibit 1, Tab 1; Joint Exhibit 3; Tr., 194, 297.) Patients with
monoclonal B cell lymphocytosis may have an increased risk of infection. (Joint Ex. 3.)
{¶8} On February 23, 2015, a CT scan was performed on Tim Gysegem. (Joint
Exhibit 1, Tab 11.) A radiologist noted that 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 (image 100, series 2). This is
consistent with a contained fluid collection secondary to perforated appendicitis.” (Joint
Exhibit 1, Tab 11.) An extraluminal collection in layman’s terms is an abscess. (Tr.,
299.) An appendicolith typically is a hardened ball of stool that may be a nidus for an
infection. (Tr., 72, 320; Deposition of Hari Nathan, M.D., 16-17.)
{¶9} The emergency department requested a surgery consultation. (Tr., 297.)
Dr. Eiferman, M.D. (a faculty member at The Ohio State University since 2010) was the
on-call surgeon; Dr. Eiferman responded to the emergency department’s request. (Tr.,
291-292, 297; Defense Exhibit 1.)
{¶10} Dr. Eiferman has been board certified in general surgery and surgical
critical care, since 2010 and 2011, respectively. (Tr., 290-291.) Dr. Eiferman estimates
that, as of February 2015, he had performed about 100 to 200 laparoscopic
appendectomies. (Tr., 309.) Dr. Eiferman described his practice as typically consisting
of intra-abdominal surgeries—“hernia, gallbladders, appendix, bowel resection, ulcer
surgeries; cases like that.” (Tr. 289-290.)
{¶11} On February 24, 2015, Dr. Eiferman performed a laparoscopic
appendectomy on Tim Gysegem at OSUWMC. (Tr., 291-292, Joint Exhibit 1, Tab 7.)
Dr. Eiferman does not have a specific recollection of the laparoscopic appendectomy
Case No. 2018-00113JD -4- DECISION
that he performed on Gysegem. (Tr., 309.) The surgical note from the surgery does not
reference whether the appendicolith identified in the CT scan of February 23, 2015 was
removed during the laparoscopic appendectomy. (Joint Exhibit 1, Tab 7.)
{¶12} Dr. Eiferman testified that he would have used a surgical instrument to “get
out what’s inside that abscess cavity, that pus, any stones, any inflammatory debris.”
(Tr., 317.)
{¶13} Tim Gysegem was discharged from the hospital on February 26, 2015 with
instructions to follow up with Dr. Eiferman. (Joint Exhibit 1, Tab 3.)
B. Readmission to OSUWMC in March 2015 and Outpatient Follow-up Visit
{¶14} Tim Gysegem became feverish, he started to turn yellow, and he had pain
in his right side about two to three days after he went home. (Tr., 196.) Tim and Cheryl
Gysegem returned to the emergency room at OSUWMC. (Tr., 196; Joint Ex.1, Tab 12.)
Tim Gysegem was readmitted to OSUWMC. (Joint Exhibit 1, Tab 17.)
{¶15} On March 1, 2015, a CT scan of Tim Gysegem’s abdomen and pelvis was
performed. (Joint Ex. 1, Tab 21.) A physician who reviewed the CT scan wrote in a
section labeled “IMPRESSION;”
4. Mild 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. 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.
5. Gallbladder mildly dilated, possibly due to fasting. Multiple dependent
gallstones again demonstrated. Choledocholithiasis is again
demonstrated. * * *.
(Joint Exhibit 1, Tab 21.)
Case No. 2018-00113JD -5- DECISION
{¶16} On March 3, 2015, Tim Gysegem underwent an endoscopic retrograde
cholangiopancreatography (ERCP) with sphincterotomy to evaluate a potential biliary
obstruction. The medical note following the ERCP shows that numerous “stones” and
sludge were removed. (Joint Exhibit 1, Tab 14, Tab 17.)
{¶17} An interventional radiology team was consulted to aspirate a fluid
collection. (Tr., 196-197, 326; Joint Exhibit 1, Tab 16.) On March 4, 2015, the
interventional radiology team drained 10 ml of fluid, which was sent for culture. (Joint
Exhibit 1, Tab 16; Tr. 196-197, 326.)
{¶18} On March 9, 2015, Tim Gysegem was discharged from OSUWMC with
instructions to schedule a follow-up appointment with Dr. Eiferman. (Joint Exhibit 1,
Tab 14.) At the follow-up appointment Dr. Eiferman recommended a laparoscopic
cholecystectomy to remove Tim Gysegem’s gallbladder. (Tr., 197-198, 328.)
C. Laparoscopic Cholecystectomy in March 2015 at OSUWMC
{¶19} On March 27, 2015, Dr. Eiferman performed a laparoscopic
cholecystectomy on Tim Gysegem at OSUWMC. (Joint Exhibit 1, Tab 24.) A physician
who assisted Dr. Eiferman dictated a surgical note that was reviewed by Dr. Eiferman.
(Exhibit J, Dr. Eiferman Deposition.) The surgical notes states that Gysegem’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. 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.” (Exhibit J, Dr. Eiferman
Deposition; Joint Exhibit 1, Tab 24.) 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. (Tr., 333.)
D. Exploratory Laparotomy in October 2015 at OSUWMC
Case No. 2018-00113JD -6- DECISION
{¶20} Tim Gysegem began to have pain at the port site where the laparoscopic
surgeries were performed. (Tr., 201.) Later “green, pussy fluid” began to drain from the
port site on Gysegem’s body. (Tr., 201.)
{¶21} In October 2015 Tim Gysegem met with Dr. Eiferman; Dr. Eiferman
ordered a CT scan of Gysegem’s abdomen and pelvis. (Joint Exhibit 1, Tab 28.) A
physician who interpreted the CT scan noted, among other things, 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.” (Joint Exhibit 1, Tab 28.)
{¶22} On October 8, 2015, Dr. Eiferman performed an exploratory laparotomy on
Tim Gysegem during which Dr. Eiferman found an abscess and seven calculi (stones)
in Gysegem’s belly button. (Tr., 342-343.) Dr. Eiferman theorizes that the calculi “must
have somehow gotten out of the gallbladder” and became lodged in the area where Dr.
Eiferman later discovered them. (Tr., 343.) Dr. Eiferman testified that he thinks that the
stones that were found in 2015 are likely related to the gallbladder surgery. (Tr., 409.)
E. Subsequent Follow up at OSUWMC
{¶23} In July 2016 Tim Gysegem experienced right upper quadrant pain. (Joint
Exhibit 1, Tab 105.). Jonathan R. Wisler, M.D. evaluated Gysegem because
Dr. Eiferman was unavailable. (Joint Exhibit 1, Tab 105.) On July 21, 2016, Dr. Wisler
indicated in a progress note that he would order a CT scan and RUQ ultrasound. (Joint
Exhibit 1, Tab 105.)
{¶24} A physician, who reviewed 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.” (Joint Exhibit 1,
Tab 35.)
Case No. 2018-00113JD -7- DECISION
{¶25} A physician, who reviewed an ultrasound of 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.” The physician who reviewed the ultrasound discussed the
results with Dr. Eiferman on July 25, 2016. (Joint Exhibit 1, Tab 105.)
{¶26} Dr. Eiferman consulted members of an interventional radiology team who
decided to aspirate the fluid collection in the right upper flank by means of ultrasound
guidance. (Joint Exhibit 1, Tabs 38 & 39.) The procedure of July 27, 2016 resulted in
the aspiration of 300 milliliters of green purulent fluid and the placement of a drain.
(Joint Exhibit 1, Tab 41.) Tim Gysegem was discharged on July 29, 2016 with
instructions to see Dr. Eiferman on August 9, 2016. (Joint Exhibit 1, Tab 37.)
{¶27} Tim Gysegem saw Dr. Eiferman as scheduled. During the appointment
Dr. Eiferman removed the drain. (Joint Exhibit 1, Tab 104.)
{¶28} Dr. Eiferman and other medical professionals at OSUWMC periodically
saw Tim Gysegem during the next twelve months or so. (Joint Exhibit 1.) Gysegem
underwent removal of an abdominal wall abscess in October 2016, drainage of a chest
wall abscess in November 2016, drainage of a perihepatic fluid collection in January
2017, and drainage of an abdominal wall abscess in June 2017. (Joint Exhibit 1,
Tabs 47, 52, 59, 71.)
{¶29} On August 15, 2017 Tim Gysegem presented to the OSUWMC emergency
department due to, among other things, shortness of breath, increasing fatigue, muscle
aches, and confusion. (Joint Exhibit, Tab 75.) A CT scan of 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.” (Tr., 481; Joint Exhibit 1, Tab 84.)
{¶30} Steven M. Steinberg, M.D. (who at the time was head of the surgery
division and who had recruited Dr. Eiferman to the surgical team) was consulted. (Tr.,
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491.) Dr. Steinberg—a professor of surgery at The Ohio State University who has held
faculty appointments at the State University of New York at Buffalo, Tulane University,
and Case Western Reserve University and who is a self-described acute care surgeon
(Tr., 435, 438)—estimated that, as of 2017, he had performed “hundreds” of
appendectomies and treatment of ruptured appendixes and “hundreds” of laparoscopic
cholecystectomies. (Tr., 436.) Cheryl Gysegem described Dr. Steinberg as “wonderful”
because he was “to the point” in his interactions with the Gysegems. (Tr., 216.)
{¶31} Dr. Steinberg advised the Gysegems 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. (Tr., 221-222, 481.)
Dr. Steinberg recommended an exploratory laparotomy with an incision and drainage of
the fluid collection. (Tr., 216-217, 481-482; Joint Exhibit 1, Tab 80.) According to
Dr. Steinberg, he “was concerned at the time that there was retained, either stone or
fecalith, that was causing the abscess to recur.” (Tr., 482.)
{¶32} Dr. Steinberg performed an exploratory laparotomy on August 17, 2017.
Dr. Steinberg found the right lobe of Tim Gysegem’s liver adhered to the anterior
abdominal wall. (Tr., 482; Joint Exhibit 1, Tab 80.) According to a surgical note (which
Dr. Steinberg edited), “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. None were
identified. (Joint Exhibit 1, Tab 80; Tr., 482-483.) 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. (Tr., 484.)
{¶33} Tim Gysegem saw Dr. Steinberg for follow-up care. (Tr., 485.)
{¶34} In October 2017 Dr. Steinberg ordered a CT scan because Tim Gysegem
began to exhibit symptoms again, i.e., night sweats and complaints of not feeling well.
(Tr., 485.) The report of the CT scan indicated: “1. Interval resolution of the perihepatic
Case No. 2018-00113JD -9- DECISION
fluid collection identified on prior studies. Interval removal of the 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.” (Joint Exhibit 1, Tab 86.)
{¶35} In December 2017 Dr. Steinberg ordered a CT scan because Tim
Gysegem’s symptoms had worsened. (Tr., 486-487; Joint Exhibit 1, Tab 108.) A CT
scan of 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.
(Joint Exhibit 1, Tab 87.)
{¶36} Dr. Steinberg asked a thoracic surgeon to become involved in Tim
Gysegem’s care. (Tr., 487.) The thoracic surgeon recommended another surgery to
drain the area identified on the CT scan. (Tr., 487.) During the 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 also inquired of another
surgeon about other possible approaches. The other surgeon did not have any other
ideas. (Tr., 487-488.)
{¶37} Dr. Steinberg last saw Tim Gysegem in an office visit in January 2018.
(Joint Exhibit 1, Tab 108.) Dr. Steinberg sent a letter wherein he terminated the
physician-patient relationship after the Gysegems initiated this litigation. (Tr., 241-242,
488-489.)
II. CONCLUSIONS OF LAW
{¶38} The Gysegems are required to establish their civil claims of medical
negligence and loss of consortium by a preponderance of the evidence. See Weishaar
v. Strimbu, 76 Ohio App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). A
preponderance of the evidence “is defined as that measure of proof that convinces the
judge or jury that the existence of the fact sought to be proved is more likely than its
Case No. 2018-00113JD -10- DECISION
nonexistence.” State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958
N.E.2d 1235, ¶ 54.
{¶39} To recover against a defendant in a tort action, a plaintiff “must produce
evidence which furnishes a reasonable basis for sustaining his claim. If his evidence
furnishes a basis for only a guess, among different possibilities, as to any essential
issue in the case, he fails to sustain the burden as to such issue.” Landon v. Lee
Motors, Inc., 161 Ohio St. 82, 118 N.E.2d 147 (1954), paragraph six of the syllabus.
{¶40} On the trial of a civil case (or criminal case), the weight to be given the
evidence and the credibility of the witnesses are primarily for the trier of the facts. State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
The court is the trier-of-facts in this case. The court is free to give weight to the
evidence and the court is free to believe all, part, or none of the testimony of the
witnesses who have appeared before the court in this case. See State v. Green, 10th
Dist. Franklin No. 03AP-813, 2004-Ohio-3697, ¶ 24.
{¶41} Generally, an employer or principal “is vicariously liable for the torts of its
employees or agents under the doctrine of respondeat superior.” Clark v. Southview
Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994). If a
physician is an employee or agent of a hospital or medical center, then liability may be
imposed upon the hospital or medical center for any negligent acts performed by that
physician under the doctrine of respondeat superior. See Latham v. Ohio State Univ.
Hosp., 71 Ohio App.3d 535, 537-538, 594 N.E.2d 1077 (10th Dist.1991). Accord
Berdyck v. Shinde, 66 Ohio St.3d 573, 577, 613 N.E.2d 1014 (1993). Because
Dr. Eiferman was an agent of OSUWMC (a medical center) when he provided care to
Tim Gysegem, OSUWMC may be liable for any negligent acts performed by
Dr. Eiferman under the doctrine of respondeat superior.
{¶42} The law “imposes on physicians engaged in the practice of medicine a duty
to employ that degree of skill, care and diligence that a physician or surgeon of the
Case No. 2018-00113JD -11- DECISION
same medical specialty would employ in like circumstances. * * * A negligent failure to
discharge that duty constitutes ‘medical malpractice’ if it proximately results in an injury
to the patient. Whether negligence exists is determined by the relevant standard of
conduct for the physician. That standard is proved through expert testimony. * * *
Neither the expert nor the standard is limited by geographical considerations. * * *.”
Berdyck at 579.
{¶43} The Supreme Court of Ohio has discussed requirements for establishing
medical malpractice and the concept of standard of care:
“The standard of care required of a medical doctor is dictated by the
custom of the profession:
‘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 * * *.’”
Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 93, 529 N.E.2d 449(1988), quoting Bruni v. Tatsumi, 46 Ohio St. 2d 127, 346 N.E.2d 673 (1976), paragraph
one of the syllabus.
{¶44} 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. (Tr., 75-76, 320, 411, 445, 468-470; Nathan Deposition, 17-18.)
{¶45} Ralph Silverman, M.D. (the Gysegems’ expert witness) opined that a
calcification shown on the CT scan of March 1, 2015 is “obviously from an
Case No. 2018-00113JD -12- DECISION
appendicolith” because no surgical interventions had been performed on Tim Gysegem
since the laparoscopic appendectomy. (Tr., 90-91.)
{¶46} The court is not convinced that the calcified structure identified on the CT
scan of March 1, 2015, is an appendicolith, as opined by Dr. Silverman. 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. (Nathan Deposition, 97.) 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.” (Tr.,
463-464.) 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. (Tr., 464.)
{¶47} The court generally finds that Dr. Silverman’s opinions are more biased
and less credible than those offered by OSUWMC’s expert witnesses. Dr. Silverman
lacks the credentials of the opposing experts (e.g., Dr. Silverman does not currently
teach any general surgery residents and Dr. Silverman has never taught fellows in any
specialty) (Tr., 142.); Dr. Silverman has demonstrated a willingness to testify outside of
his area of expertise, see Wilson v. Dean, App. No. 334243, 2018 Mich. App. LEXIS 57,
at *9 (Jan. 9, 2018) (concluding that Dr. Silverman was not qualified to testify about a
general surgery standard of care because the majority of Dr. Silverman’s practice was
not in general surgery); and twenty to twenty-five percent of Dr. Silverman’s income is
generated from Dr. Silverman’s case reviews and testimony, with about ninety-five
percent of the reviews performed on behalf of plaintiffs. (Tr., 132.) While Dr. Silverman
Case No. 2018-00113JD -13- DECISION
asserts that he has performed “hundreds” of appendectomies and cholecystectomies in
his career, Dr. Silverman admits that he performed the “overwhelming majority” of the
cholecystectomies early in his career when he was engaged in more general surgery.
(Tr., 65-66.) Dr. Silverman thus has less experience with appendectomies or
cholecystectomies. With no evidence, Dr. Silverman also suggested that Dr. Eiferman
exhibited a lack of care for his patients when he stated that “[y]ou have to pretend that
you care and look around” (Tr., 170). Such a suggestion demonstrates bias and affects
Dr. Silverman’s overall credibility, notwithstanding that, at the same time, Dr. Silverman
is critical of Dr. Eiferman’s professional performance.
{¶48} 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 laproscopic 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. (Tr. 468; Nathan
Deposition, 28-30). See Berdyck v. Shinde, 66 Ohio St.3d 573, 584, 613 N.E.2d 1014(1993) (whether a standard of care articulated by an expert witness governs a duty of
care is a question of fact, determined from all relevant facts and circumstances).
{¶49} With respect to the laparoscopic cholecystectomy, the court determines
that the opening of an EndoCatch bag during a laparoscopic cholecystectomy is a
recognized complication of that type of surgery. (Nathan Deposition, 38; Tr. 547.)
When an EndoCatch bag opens during the extraction of a gallbladder in a laparoscopic
cholecystectomy, the standard of care requires a surgeon to remove the gallbladder
from a patient’s body, inspect the immediate vicinity of the gallbladder extraction and, if
stones are identified, to remove the stones, and irrigate the area to ensure that spilled
Case No. 2018-00113JD -14- DECISION
bile, blood, or stones has been completely evacuated. (Nathan Deposition, 38-39; Tr.,
450-453.)
{¶50} Based on the evidence presented and in agreement with OSUWMC’s
experts, the court finds by a preponderance of the evidence that Dr. Eiferman met the
standard of care during the laparoscopic cholecystectomy when he searched the
surgical areas and when, after he found no evidence of any gallstones that had dropped
or scattered in the abdomen, he “copiously” irrigated the gallbladder fossa. (Tr., 471;
Nathan Deposition, 36-38.)
{¶51} Dr. Eiferman has theorized that some gallstones “must have somehow
gotten out of the gallbladder” and became lodged in the area where Dr. Eiferman later
discovered them during an exploratory laparotomy. (Tr., 343.) Dr. Eiferman also
testified that he thinks that the stones that were found in 2015 (i.e., during the
exploratory laparotomy) are likely related to the gallbladder surgery. (Tr., 409.)
{¶52} The Supreme Court of Ohio, however, has held: “A presumption of
negligence is never indulged from the mere fact of injury, but the burden of proof is
upon the plaintiff to prove the negligence of the defendant and that such negligence is a
proximate cause of injury and damage.” Ault v. Hall, 119 Ohio St. 422, 422, 164 N.E.
518 (1928), paragraph one of the syllabus. Because Dr. Eiferman acted within the
standard of care during the laparoscopic cholecystectomy, the court concludes that a
presumption of negligence may not be indulged from the fact gallstones may have
spilled during the surgery. Accord Turner v. Children’s Hosp., Inc., 76 Ohio App.3d 541,
548, 602 N.E.2d 423 (10th Dist.1991), citing Ault, supra (no presumption of malpractice
from the mere fact of injury).
{¶53} While the court does not know the precise cause of Tim Gysegem’s
recurring infections, the evidence does not establish that OSUWMC, through
Dr. Eiferman, failed to meet the standard of care in either the laparoscopic
appendectomy or laparoscopic cholecystectomy. Consequently, the Gysegems cannot
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prevail on their claim of medical negligence against OSUWMC. See Reeves v. Healy,
192 Ohio App.3d 769, 2011-Ohio-1487, 950 N.E.2d 605, ¶ 38 (10th Dist.) (to establish a
cause of action for medical malpractice, a plaintiff is required to show, among other
things, a breach of that standard of care by the defendant).
{¶54} A claim for loss of consortium is a derivative claim in that the claim is
dependent upon a defendant’s having committed a legally cognizable tort upon a
spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93, 585
N.E.2d 384 (1992). Because the Gysegems have not proven by a preponderance of
the evidence that OSUWMC should be held liable for the tort of medical negligence, the
court concludes that the claim for loss of consortium fails.
III. Conclusion
{¶55} The court holds that the Gysegems have not proven by a preponderance of
the evidence that OSUWMC should be held liable for medical malpractice or a
derivative loss of consortium. The Gysegems’ request to submit into evidence the
previously unfiled discovery deposition of Dr. Matasar should be denied.
PATRICK M. MCGRATH
Judge
[Cite as Gysegem v. Ohio State Univ. Wexner Med. Ctr., 2020-Ohio-4910.]
JOHN GYSEGEM, et al. Case No. 2018-00113JD
Plaintiffs Judge Patrick M. McGrath
v. JUDGMENT ENTRY
OHIO STATE UNIVERSITY WEXNER
MEDICAL CENTER
Defendant
{¶56} For the reasons set forth in the decision filed concurrently herewith, the
court DENIES plaintiffs’ request to submit into evidence a previously unfiled discovery
deposition of Matthew Matasar, M.D., M.S. Judgment is rendered in favor of defendant.
Court costs are assessed against plaintiffs. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed September 8, 2020
Sent to S.C. Reporter 10/15/20