[Cite as Gysegem v. Ohio State Univ. Wexner Med. Ctr., 2020-Ohio-4910.]

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. 

JOHN GYSEGEM, et al. 

 Plaintiffs 

 v. 

OHIO STATE UNIVERSITY WEXNER 

MEDICAL CENTER 

 Defendant 

Case No. 2018-00113JD 

Judge Patrick M. McGrath 

DECISION 
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., 
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 postappendectomy 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 preappendectomy 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 
Case No. 2018-00113JD -15- DECISION 

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.]

{¶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 

JOHN GYSEGEM, et al. 

 Plaintiffs 

 v. 

OHIO STATE UNIVERSITY WEXNER 

MEDICAL CENTER 

 Defendant 

Case No. 2018-00113JD 

Judge Patrick M. McGrath 

JUDGMENT ENTRY