2021 Ohio 4496
Ohio Ct. App.2021Background
- In Feb. 2015 Tim Gysegem presented with perforated appendicitis; pre-op CT showed an extraluminal abscess containing an appendicolith.
- Dr. Daniel Eiferman performed a laparoscopic appendectomy on Feb. 24, 2015; operative note did not record whether the appendicolith was removed. Tim was discharged but quickly readmitted with infection and a March 1 CT showed a small calcified structure and continued fluid.
- Tim underwent additional procedures (ERCP, cholecystectomy in Mar. 2015, multiple drainages and later exploratory laparotomy) and recurrent abscesses; gallbladder removal note described bag opening but removal of the gallbladder in one piece; 7 calculi later found in the umbilicus.
- Appellants sued OSU Wexner Medical Center (respondeat superior for Dr. Eiferman) for medical malpractice and loss of consortium, alleging failure to remove the appendicolith caused recurrent infections.
- At the bench trial the parties’ experts disputed whether the calcified object on the March 1 CT was the same appendicolith seen pre-op; the Court of Claims credited defense experts and Dr. Eiferman’s habit testimony and found no malpractice. Appellants appealed raising three assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judgment was against the manifest weight of the evidence (malpractice liability) | Gysegem: post-op CT showed retained appendicolith; Dr. Eiferman negligently left it behind causing recurrent abscesses | OSUWMC: post-op calcification was different (smaller, different location); defense experts and surgeon testimony show appendicolith was likely removed and care met standard | Affirmed — trial court reasonably credited defense experts; competent, credible evidence supported no breach |
| Whether defense expert testimony was improperly speculative under Evid.R. 702/703 | Gysegem: defense experts assumed Eiferman had followed his habit (removing fecalith) so their opinions were speculative | OSUWMC: experts relied on records, imaging, training and were instructed to opine to reasonable medical probability; no objection at trial to much testimony | Affirmed — court found expert opinions were grounded in record/facts; admissibility and weight were for the trier of fact |
| Whether admitting Dr. Eiferman’s habit testimony violated Evid.R. 406 | Gysegem: no foundation for habit testimony that he routinely removes appendicoliths; should have been excluded | OSUWMC: Eiferman had extensive experience, described routine and lack of recollection of the specific case — testimony was proper habit evidence | Affirmed — trial court properly received habit evidence; no contemporaneous objection, and habit admissible where routine well described |
Key Cases Cited
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978) (standard for overturning civil judgments as against the manifest weight of the evidence)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984) (trial judge's advantage in assessing witness credibility and demeanor)
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (elements and burden of proof in medical malpractice actions)
- Latham v. Ohio State Univ. Hosp., 71 Ohio App.3d 535 (10th Dist. 1991) (hospital liability under respondeat superior for physician-agents)
- Albain v. Flower Hosp., 50 Ohio St.3d 251 (1990) (doctrine of respondeat superior in medical context)
- Burris v. Lerner, 139 Ohio App.3d 664 (8th Dist. 2000) (Evid.R. 406 habit evidence admissible in medical cases to show routine practice)
- State v. Depew, 136 Ohio App.3d 129 (4th Dist. 1999) (questions of law construing evidentiary rules reviewed de novo)