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.)

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{¶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

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{¶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.,

Case No. 2018-00113JD -8- DECISION

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