[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 Ohi o State University Wexner Medical Center (OSUWMC). The Gysegems’ claims arise fro m two surgeries at OSUWMC that Daniel Eiferman, M.D. performed on Tim Gysegem—a laparoscopic appendectomy on February 24, 2015, and a laparoscopic cholecyst ectomy 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 g allstones spilled from an EndoCatch bag during the laparoscopic cholecystectomy and th at Dr. Eiferman failed to thoroughly irrigate Gysegem’s abdominal cavity during the laparoscopic cholecystectomy. The Gysegems maintain that Dr. Eiferman’s all eged 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 pos t-trial submissions to briefly address the Gysegems’ request to submit into evidence a n 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

DECISIONCase No. 2018-00113JD -2- DECISION

{¶3} Both parties filed proposed findings of fact and proposed concl usions of law. The Gysegems, however, have not addressed in their post-trial f iling 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 w ith Civ.R. 32(A) (use of depositions in court proceedings). OSUWMC asserts that the Gys egems therefore are precluded from submitting into evidence any portion of Dr. Mata sar’s testimony from the deposition. {¶4} Pursuant to Civ.R. 32(A), every deposition intended to be prese nted as evidence “must be filed at least one day before the day of tria l 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 h ave not shown good cause to permit the filing of Dr. Mat asar’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 hi s surgeries at OSUWMC. (Tr., 258.) Tim’s surgeries and complications from the surgeri es have affected the Gysegems’ marriage. (Tr., 221-222, 226, 258.) {¶6} Tim Gysegem previously worked as an x-ray technician; he has wo rked as an associate in the plumbing department of Lowe’s since Februar y 2019. (Tr., 250, 251, 258.) Cheryl Gysegem has been a nurse since 1989. (Tr. 1 92.) 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 th at 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 becam e a certified nurse consultant in 2011) retired from a nursing position at OSUWMC. (Tr., 222-223.)Case No. 2018-00113JD -3- DECISION

A. Laparoscopic Appendectom y 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 i nfection. (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 showe d “an extraluminal collection containing an air-fluid level adjacent to the append ix with an appendicolith in this region, measuring approximately 2.6 x 4.4 cm (image 100, s eries 2). This is consistent with a contained fluid collection secondary to perfo rated appendicitis.” (Joint Exhibit 1, Tab 11.) An extraluminal collection in layman’s ter ms is an abscess. (Tr., 299.) An appendicolith typically is a hardened ball of stool t hat 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. (T r., 297.) Dr. Eiferman, M.D. (a faculty member at The Ohio State Universi ty since 2010) was the on-call surgeon; Dr. Eiferman responded to the emergency depart ment’s request. (Tr., 291-292, 297; Defense Exhibit 1.) {¶10} Dr. Eiferman has been board certified in general surgery and su rgical critical care, since 2010 and 2011, respectively. (Tr., 290-29 1.) Dr. Eiferman estimates that, as of February 2015, he had performed about 100 to 200 la paroscopic appendectomies. (Tr., 309.) Dr. Eiferman described his practi ce as typically consisting of intra-abdominal surgeries—“hernia, gallbladders, appendix, b owel 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 Ex hibit 1, Tab 7.) Dr. Eiferman does not have a specific recollection of the lapar oscopic appendectomyCase No. 2018-00113JD -4- DECISION

that he performed on Gysegem. (Tr., 309.) The surgical note f rom the surgery does not reference whether the appendicolith identified in the CT scan o f 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 instr ument to “get out what’s inside that abscess cavity, that pus, any stones, an y inflammatory debris.” (Tr., 317.) {¶13} Tim Gysegem was discharged from the hospital on February 26, 20 15 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; J oint 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 th e 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 a rea of thickening, not seen previously. Although well separated from t he site of appendectomy, the findings may reflect a small amount of compli cated fluid, with a small calcification/ calcified structure, of unce rtain relationship to the previously inflamed appendix. 5. Gallbladder mildly dilated, possibly due to fasting. Multip le 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 retrograd e cholangiopancreatography (ERCP) with sphincterotomy to evaluate a potential biliary obstruction. The medical note following the ERCP shows that nu merous “stones” and sludge were removed. (Joint Exhibit 1, Tab 14, Tab 17.) {¶17} An interventional radiology team was consulted to aspirate a fl uid 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. Eifer man. (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, Ta b 24.) A physician who assisted Dr. Eiferman dictated a surgical note that was rev iewed by Dr. Eiferman. (Exhibit J, Dr. Eiferman Deposition.) The surgical notes states that Gysegem’s gallbladder “was * * * placed into an EndoCatch bag, however, d uring 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 s urgical 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 per form a complete peritoneal lavage based on concern that to do so may result in adverse con sequences, such as spreading bile in the body’s cavity. (Tr., 333.)

D. Exploratory Laparotomy in October 2015 at OSUWMCCase No. 2018-00113JD -6- DECISION

{¶20} Tim Gysegem began to have pain at the port site where the lapar oscopic surgeries were performed. (Tr., 201.) Later “green, pussy flu id” began to drain from the port site on Gysegem’s body. (Tr., 201.) {¶21} In October 2015 Tim Gysegem met with Dr. Eiferman; Dr. Eiferma n ordered a CT scan of Gysegem’s abdomen and pelvis. (Joint Exhi bit 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 abdo men that tracks into the periumbilical area with probable external communication. This c ould be a chronic postoperative collection/hematoma. Superimposed infection is d ifficult to exclude. No definite contrast noted within this collection.” (Joint Exhibi t 1, Tab 28.) {¶22} On October 8, 2015, Dr. Eiferman performed an exploratory lapa rotomy on Tim Gysegem during which Dr. Eiferman found an abscess and seve n calculi (stones) in Gysegem’s belly button. (Tr., 342-343.) Dr. Eiferman theor izes that the calculi “must have somehow gotten out of the gallbladder” and became lodged i n the area where Dr. Eiferman later discovered them. (Tr., 343.) Dr. Eiferman test ified that he thinks that the stones that were found in 2015 are likely related to the gallbl adder 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 Gyseg em 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 posteri or to the right hepatic lobe. This is amenable to percutaneous drainage. 2. A few sma ll 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 portio n of the common bile duct. 2. Fluid collection posterior to the liver, similar to p rior CT. This could represent a hematoma or an abscess.” The physician who reviewed the ultras ound discussed the results with Dr. Eiferman on July 25, 2016. (Joint Exhibit 1, Tab 105.) {¶26} Dr. Eiferman consulted members of an interventional radiology t eam who decided to aspirate the fluid collection in the right upper fla nk by means of ultrasound guidance. (Joint Exhibit 1, Tabs 38 & 39.) The procedure of July 27, 2016 resulted in the aspiration of 3 00 milliliters of green purulent fluid and t he 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 Exh ibit 1, Tab 37.) {¶27} Tim Gysegem saw Dr. Eiferman as scheduled. During the appointm ent Dr. Eiferman removed the drain. (Joint Exhibit 1, Tab 104.) {¶28} Dr. Eiferman and other medical professionals at OSUWMC periodic ally saw Tim Gysegem during the next twelve months or so. (Joint Ex hibit 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 emergenc y department due to, among other things, shortness of breath, inc reasing fatigue, muscle aches, and confusion. (Joint Exhibit, Tab 75.) A CT scan of A ugust 16, 2017 suggested: “Interval enlargement of loculated perihepatic fluid collection along the right posterior lateral aspect of the liver. Sterility of this colle ction 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 surg ery division and who had recruited Dr. Eiferman to the surgical tea m) was consulted. (Tr.,Case No. 2018-00113JD -8- DECISION

491.) Dr. Steinberg—a professor of surgery at The Ohio State U niversity who has held faculty appointments at the State University of New York at Buf falo, 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 “h undreds” of appendectomies and treatment of ruptured appendixes and “hundre ds” of laparoscopic cholecystectomies. (Tr., 436.) Cheryl Gysegem described Dr. S teinberg as “wonderful” because he was “to the point” in his interactions with the Gyse gems. (Tr., 216.) {¶31} Dr. Steinberg advised the Gysegems that the CT scan demonstrate d an abscess in an area not previously seen and that it had encompas sed 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 inc ision 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 ret ained, 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 adher ed to the anterior abdominal wall. (Tr., 482; Joint Exhibit 1, Tab 80.) Accordin g 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 explore d the abscess cavity using curettes and a finger, looking for foreign bodies such as retai ned 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 ca vity, 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 Gys egem began to exhibit symptoms again, i.e., night sweats and complai nts of not feeling well. (Tr., 485.) The report of the CT scan indicated: “1. Interval resolution of the perihepaticCase No. 2018-00113JD -9- DECISION

fluid collection identified on prior studies. Interval removal of the previously identified perihepatic drain. 2. Redemonstration of pneumobilia, likely r elated to prior sphincterotomy and cholecystectomy. 3. Stable hyperdense lesio ns 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 ova l collection medial to the liver dome, which could have been a subphrenic abscess o r a sterile collection. (Joint Exhibit 1, Tab 87.) {¶36} Dr. Steinberg asked a thoracic surgeon to become involved in Ti m 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 an d a thoracic surgeon drained the collection that was in the chest. Dr. Steinberg al so 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 Januar y 2018. (Joint Exhibit 1, Tab 108.) Dr. Steinberg sent a letter wherei n he terminated the physician-patient relationship after the Gysegems initiated thi s litigation. (Tr., 241-242, 488-489.)

II. CONCLUSIONS OF LAW {¶38} The Gysegems are required to establish their civil claims of me dical negligence and loss of consortium by a preponderance of the evi dence. 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 pr oof that convinces the judge or jury that the existence of the fact sought to be prove d is more likely than itsCase 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 “m ust produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among different possibiliti es, as to any essential issue in the case, he fails to sustain the burden as to such is sue.” 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 t he 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 th e syllabus.

The court is the trier-of-facts in this case. The court is fre e 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 cent er, then liability may be imposed upon the hospital or medical center for any negligent a cts 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 perfor med by Dr. Eiferman under the doctrine of respondeat superior

. {¶42} The law “imposes on physicians engaged in the practice of medic ine a duty to employ that degree of skill, care and diligence that a physi cian or surgeon of theCase 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 pro ximately 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 exp ert 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 establ ishing 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 cau sed by the doing of some particular thing or things that a physician o r surgeon of ordinary skill, care and diligence would not have done under li ke or similar conditions or circumstances, or by the failure or omission to d o some particular thing or things that such a physician or surgeon wou ld 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 stan dard of care for the laparoscopic appendectomy required Dr. Eiferman to sear ch 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 tha t a calcification shown on the CT scan of March 1, 2015 is “obvious ly from anCase No. 2018-00113JD -12- DECISION

appendicolith” because no surgical interventions had been perfo rmed on Tim Gysegem since the laparoscopic appendectomy. (Tr., 90-91.) {¶46} The court is not convinced that the calcified structure identif ied on the CT scan of March 1, 2015, is an appendicolith, as opined by Dr. Si lverman. A postappendectomy CT scan (CT scan of March 1, 2015) identified “a s mall calcification/ calcified structure, of uncertain relationship to the previousl y inflamed appendix”—not an appendicolith. Hari Nathan, M.D. (an expert witness for OSU WMC) 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 inflam matory soft tissue, and

that the calcification is about half the size of what Dr. Natha n 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 lik ely not the same thing.” (Tr., 463-464.) Dr. Steinberg further noted that the original append icolith (and the structure identified in the CT scan of March 1st) appeared to be calcifie d, and calcified appendicoliths would not change very rapidly, if at all. (Tr., 464.) {¶47} The court generally finds that Dr. Silverman’s opinions are mor e biased and less credible than those offered by OSUWMC’s expert witness es. Dr. Silverman lacks the credentials of the opposing experts (e.g., Dr. Silver man 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 willi ngness 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 qua lified to testify about a general surgery standard of care because the majority of Dr. Si lverman’s practice was not in general surgery); and twenty to twenty-five percent of D r. 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. SilvermanCase 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 “overwhe lming majority” of the cholecystectomies early in his career when he was engaged in mo re general surgery. (Tr., 65-66.) Dr. Silverman thus has less experience with appe ndectomies or cholecystectomies. With no evidence, Dr. Silverman also sugges ted 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 demons trates bias and affects Dr. Silverman’s overall credibility, notwithstanding that, at t he same time, Dr. Silverman is critical of Dr. Eiferman’s professional performance. {¶48} Dr. Eiferman’s testimony that, during the laparoscopic appendec tomy he would have used a surgical instrument to remove any inflammator y debris, is credible and persuasive for the proposition that the appendicolith ident ified in the preappendectomy CT scan likely was removed during the laparoscopic appendectomy. The court concludes by preponderance of the evidence that Dr. E iferman did not breach the standard of care during the laproscopic appendectomy by fai ling 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 wit ness 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 det ermines that the opening of an EndoCatch bag during a laparoscopic chol ecystectomy is a recognized complication of that type of surgery. (Nathan Depos ition, 38; Tr. 547.)

When an EndoC atch bag opens during the extraction of a gallblad der in a laparoscopic cholecystectomy, the standard of care requires a surgeon to rem ove the gallbladder from a patient’s body, inspect the immediate vicinity of the ga llbladder extraction and, if stones are identified, to remove the stones, and irrigate the a rea to ensure that spilledCase 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 tha t Dr. Eiferman met the standard of care during the laparoscopic cholecystectomy when h e searched the surgical areas and when, after he found no evidence of any gall stones that had dropped or scattered in the abdomen, he “copiously” irrigated the gallb ladder fossa. (Tr., 471; Nathan Deposition, 36-38.) {¶51} Dr. Eiferman has theorized that some gallstones “must have some how gotten out of the gallbladder” and became lodged in the area wh ere 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 201 5 (i.e., during the exploratory laparotomy) are likely related to the gallbladder s urgery. (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. Eiferma n acted within the standard of care during the laparoscopic cholecystectomy, the c ourt concludes that a presumption of negligence may not be indulged from the fact gal lstones 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 OSUW MC, through Dr. Eiferman, failed to meet the standard of care in either the laparoscopic appendectomy or laparoscopic cholecystectomy. Consequently, th e Gysegems cannotCase 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 require d 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 t he claim is dependent upon a defendant’s having committed a legally cogniza ble 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 p reponderance 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 preponde rance of the evidence that OSUWMC should be held liable for medical malp ractice or a derivative loss of consortium. The Gysegems’ request to submit into evidence the previously unfiled discovery deposition of Dr. Matasar should b e denied.

PATRICK M. MCGRATH Jud g e[Cite as Gysegem v. Ohio State Univ. Wexner Med. Ctr. , 2020-Ohio-4910.]

{¶56} For the reasons set forth in the decision filed concurrently he rewith, the court DENIES plaintiffs’ request to submit into evidence a prev iously 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 s erve upon all parties notice of this judgment and its date of entry upon the journal.

PATRICK M. MCGRATH Jud g e

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