COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59645 KATHY KOSMOS, ETC., : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION THE CLEVELAND ELECTRIC : ILLUMINATING COMPANY, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 144,319 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Lawrence Landskroner LANDSKRONER & PHILLIPS CO., L.P.A. 75 Public Square, 11th Floor Cleveland, Ohio 44113 For defendant-appellee, Robin G. Weaver Cleveland Electric Company: SQUIRE, SANDERS & DEMPSEY 1800 Huntington Building Cleveland, Ohio 44115 For defendant-appellee, John J. Horrigan Parma Community Hospital: WESTON, HURD, FALLON, PAISLEY & HOWLEY Terminal Tower, 25th Floor Cleveland, Ohio 44113 - 2 - For defendants-appellees, John V. Jackson Stacey Besst, M.D., Estate JACOBSEN, MAYNARD, TUSCHMAN of Oscar Reyes, M.D., & KALUR Community Emergency Physicians, 1001 Lakeside Avenue and Parma Anesthesia Suite 1600 Associates: Cleveland, Ohio 44114 - 3 - NAHRA, P.J.: Kathy Kosmos appeals from the trial court's judgment which directed verdicts for appellees Cleveland Electric Illuminating Company and Parma Community General Hospital. Appellant also appeals the jury verdicts in favor of appellees Dr. Stacey Besst, David Reyes as executor of the estate of Dr. Oscar Reyes, Community Emergency Physicians, and Parma Anesthesia Associates. For the reasons set forth below, we affirm. Kathy Kosmos' thirteen-year-old son Eric Davis died at Parma Hospital after running into a cable while riding his three- wheeled all-terrain vehicle or ATV on a private CEI road. Eric Davis had purchased the ATV on November 26, 1984, and rode it with his friends Jason Schiefelbein, Jeffrey Berkes and Sean Greene on December 1. Berkes' mother transported Davis and the ATV to Schiefelbein's house. Schiefelbein and Berkes lived near and were familiar with the property where the boys were going to ride. Accordingly, the boys set out with Schiefelbein or Berkes in the lead, because they knew the way. Sean Greene rode a motorcycle; the other three boys rode ATVs. The group rode on three sections of CEI roads on their way to open land. These unpaved roads provide access to CEI transmission lines for maintenance purposes. The roads are blocked with metal cables strung between concrete posts where they intersect with public roads. They are also marked with no trespassing signs. -4- On the access roads, the boys passed about five cables. One was down; others were driven around or under. After reaching open land, the boys road their vehicles for about three hours. The boys left the open land when it was getting dark and proceeded back over CEI access roads blocked with cables. After they passed the first section of CEI cables and were approaching the second set, the group stopped to help Sean Greene with his motorcycle. Eric Davis then took off in the lead. Berkes was behind Davis. Berkes knew that another set of cables was coming up, and attempted to catch up to Davis to warn him. He testified that he rode as fast as he could and flashed his light but could not catch up. Davis struck the cable and was knocked off his ATV. The ATV flipped over several times. Berkes stated that it was "past dusk" when the accident happened; other witnesses confirmed that it was dark. A nearby resident called for an ambulance and assisted Davis at the scene. He stated that Davis was frightened and breathing hard. Other witnesses stated that he could not talk; was having difficulty breathing; and that his throat had a red burn-like mark across it. Davis was transported by ambulance to Parma Community General Hospital. The hospital had been alerted that Davis would need immediate attention. Dr. Stacey Besst examined Davis when he arrived at the hospital at 5:55 p.m. Dr. Besst could feel that the upper -5- portion of Davis' trachea did not line up with the lower portion and concluded that the trachea had been cut or transected. He testified that Davis' airway was obstructed, but that he was able to breathe. He could not determine whether the trachea was completely transected. During the exam, Dr. Besst called for an anesthesiologist to assist him. He intended to intubate Davis to establish an airway. He wanted an anesthesiologist to do the intubation, since anesthesiologists regularly perform intubations. When an anesthesiologist did not come immediately, Dr. Besst left Davis briefly to find one. He found Dr. Reyes nearby and returned to the emergency room with him. Dr. Reyes attempted to intubate Davis with Dr. Besst's assistance. When Dr. Besst saw that Dr. Reyes was experiencing difficulty with the intubation, he prepared to perform a tracheotomy. When Dr. Besst surgically opened Davis' throat, the lower portion of Davis' trachea was not visible, because it had retracted into Davis' chest. Dr. Besst found the collapsed trachea and was in the process of securing it when Davis went into cardiac arrest at 6:11 p.m. Someone began external cardiac massage on Davis which pulled the trachea back into Davis' chest. Dr. Besst pulled it up again, inserted a tube into it, and inflated Davis' lungs at 6:15. Davis' heart started again at 6:26. He never regained consciousness. When tests indicated a lack of brain activity, -6- Davis' family chose to remove life support equipment. Davis was pronounced dead on December 3. The decedent's mother, Kathy Kosmos, filed suit in 1985, which was dismissed on the day of trial. It was refiled in 1988. Defendants included CEI, Parma Community General Hospital, Dr. Reyes' executor, Dr. Reyes' employer, Parma Anesthesia Associates, Dr. Besst, and his employer, Community Emergency Physicians. The plaintiff asserted that CEI should be liable for its placement and maintenance of the cable. The plaintiff asserted that the remaining defendants were liable because Eric Davis was negligently treated at Parma Hospital. At the close of plaintiff's case, the court directed verdicts for CEI and Parma Hospital. The jury returned verdicts in favor of Dr. Besst, Dr. Reyes, Parma Anesthesia Associates and Community Emergency Physicians. Plaintiff brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED BY EXCLUDING THE TESTIMONY OF APPELLANT'S EXPERT ROBERT KELLY AND BY OVERRULING HER MOTION FOR RECONSIDERATION THEREON IN APPELLANT'S CASE AGAINST APPELLEE CLEVELAND ELECTRIC ILLUMINATING COMPANY. Civ. R. 16 empowers courts to adopt rules regarding the exchange of expert reports of witnesses to be called at trial. Loc. R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division, requires parties to submit expert reports in -7- accordance with the schedule established at the Case Management Conference. It states in part that "[t]he report of an expert must reflect his opinions as to each issue on which the expert will testify". It also provides that "[i]t is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each such report adequately sets forth the expert's opinion". The Case Management Conference Decree and Order in this case was filed on October 7, 1988, and provided that plaintiff- appellant's expert reports had to be submitted by January 23, 1989. The report of Robert Kelly is dated January 23, 1989 and reads as follows: This is to certify that the road and cable involved in the injuries sustained to Eric Davis constituted a hazard to persons using the road under the circumstances. On motion of CEI that the report was too short, the trial court barred plaintiff-appellant's expert witness from testifying against CEI. The court's order stated that "[t]he record of this case and its predecessor show willful non- compliance with reasonable discovery orders of the court". Trial courts have discretion to determine whether parties are in compliance with Loc. R. 21.1, see supra, and their orders will not be reversed absent an affirmative showing that the court abused its discretion. Pang v. Minch (1990), 53 Ohio St. 3d 186, paragraph one of the syllabus; Furcello v. Klammer (1980), 67 Ohio App. 2d 156, paragraph one of the syllabus. In this case, -8- the trial court reasonably concluded that the report was inadequate. This statement does not adequately set forth Robert Kelly's expert opinion on any relevant issues. The trial court did not abuse its discretion in barring this expert, and appellant's first assignment of error is without merit. II. Appellant's second assignment of error reads as follows: THE TRIAL COURT ERRED BY FAILING TO EXCLUDE THE TESTIMONY OF DEFENSE EXPERT DR. JONATHAN GLAUSER WHO DID NOT QUALIFY AS AN EXPERT UNDER THE PROVISIONS OF EVIDENCE RULE 601(D). Evid. R. 601(D) requires an expert witness in a medical malpractice action to be licensed and to devote "three-fourths of his professional time to the active clinical practice in his field of licensure, or to its instruction in an accredited university" in order to be competent to testify. The determination as to competency is within the discretion of the trial court, and will not be reversed absent a clear showing of abuse. Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377, paragraph eight of the syllabus; McCrory v. State (1987), 67 Ohio St. 2d 99, 105. The deposition of Jonathan Glauser was taken on March 2, 1987, prior to appellant's dismissal and refiling of this case in 1988. At that time, Dr. Glauser did not clearly state what percentage of his time was in active clinical practice and teaching, although it was in excess of fifty percent. Appellant made no objection to Glauser's qualifications until shortly -9- before trial in February, 1990, when appellant filed a motion in limine. The motion was denied. At trial in March of 1990, the trial court conducted a voir dire examination of Dr. Glauser to determine his competency to testify as an expert witness. Dr. Glauser indicated that he spent 85 - 90% of his time in active clinical practice, and was allowed to testify. The trial court did not abuse its discretion in allowing Dr. Glauser to testify. Dr. Glauser was clearly qualified to testify as an expert pursuant to Evid. R. 601(D) at the time of trial. Appellant's argument that Glauser was not competent in 1987 and that she was "disadvantaged" because she did not know until trial if Glauser was competent is meritless. There is no clear breakdown of Glauser's time in the deposition. Also, appellant dismissed her case after Glauser's deposition and made no objection regarding his competency to testify until two weeks prior to trial in the second case. Appellant's second assignment of error is without merit. III. Appellant's third assignment of error reads as follows: THE TRIAL COURT ERRED BY EXCLUDING PORTIONS OF THE TESTIMONY OF EDNA DEFFLER AND JIM KARIKAS CONCERNING THEIR MEETINGS WITH OFFICIALS OF APPELLEE CLEVELAND ELECTRIC ILLUMINATING COMPANY. Appellant's counsel admitted on the record that appellant failed to answer CEI's interrogatories regarding the issues about which Deffler and Karikas were to testify. When appellant -10- attempted to call these witnesses, counsel for CEI objected and moved to exclude testimony going to the subject matter of the interrogatories pursuant to Civ. R. 37(D). The trial court granted CEI's motion. Civ. R. 37(D) provides that where a party fails to answer interrogatories, the court may make any just order, including refusal to allow the disobedient party to support designated claims, and exclusion of evidence of designated matters. The choice of sanctions for discovery abuses is within the discretion of the trial court and will not be reversed absent abuse of discretion. Russo v. Goodyear Tire & Rubber Co. (1987), 36 Ohio App. 3d 175, paragraph three of the syllabus. In Russo, the court of appeals affirmed the trial court's dismissal of the action as a sanction for the plaintiff's disobedience of an order compelling answers to interrogatories. See also Jones v. Murphy (1984), 12 Ohio St. 3d 84 (court affirms exclusion of expert testimony as a Civ. R. 37 sanction for failure to provide discovery). The trial court did not abuse its discretion by excluding appellant's witnesses. Exclusion of testimony covered by the interrogatories appellant refused to answer was a reasonable sanction pursuant to Civ. R. 37(D). Appellant's assignment of error is without merit. IV. Appellant's fourth assignment of error reads as follows: -11- THE TRIAL COURT ERRED BY REFUSING TO EXCUSE JUROR HILLMAN FOR CAUSE AFTER APPELLANT HAD USED ALL OF HER PEREMPTORY CHALLENGES. R.C. 2313.42 lists good causes for challenge to potential jurors, including in subsection (J) that the potential juror "discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court". R.C. 2313.43 provides that jurors may be challenged on suspicion of prejudice or partiality. It states in pertinent part that the validity of a challenge "shall be determined by the court and be sustained if the court has any doubt as to the juror's being entirely unbiased". In Berk v. Matthews (1990), 53 Ohio St. 3d 161, syllabus, the court held as follows: The determination of whether a prospective juror should be disqualified for cause pursuant to R.C. 2313.42(J) is a discretionary function of the trial court. Such determination will not be reversed on appeal absent an abuse of discretion. (Maddex v. Columber [1926], 114 Ohio St. 178, 151 N.E. 56, approved and followed.) During voir dire, juror Hillman stated that she had worked as a paralegal in the probate department from 1982 - 1985 at the same law firm representing Parma Community General Hospital in this case. She stated that she did not work with the lawyer representing the hospital. At the time of trial, she worked at a different firm. Hillman stated that it would not be difficult for her to find against the hospital. She stated repeatedly that she would be able to keep an open mind and be fair to everyone. Hillman also stated that the lawyers may make her uncomfortable because -12- they would think she may not be impartial, but never gave any indication in any answer that she might be biased or partial. Appellant's fourth assignment of error is without merit. V. Appellant's fifth assignment of error reads as follows: THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY AS TO THE DIFFERENT METHODS OF TREATMENT IN SUCH A WAY AS TO EMPHASIZE THE APPELLEES' DEFENSE. Appellant contends that the court's charge improperly led the jury to believe that the doctors had a choice of treatments; that the charge improperly indicated that the jury could not consider whether the treatment was negligently administered; and that the charge emphasized the medical theory of the defense. The relevant portions of the court's charge read as follows: Negligence is a failure to use ordinary care. Everyone is required to use ordinary care to avoid injuring another person. And it is that degree of care that a reasonably prudent person would use understand (sic) the same or similar circumstances. Dr. Besst is an emergency room doctor. The standard of care for a physician in the practice of emergency room medicine is that of a reasonable emergency room physician practicing under the same or similar circumstances. Dr. Reyes, who has since passed away, was an anesthesiologist. The standard of care for a physician in the practice of anesthesiology is that of a reasonable anesthesiologist practicing under the same or similar circumstances. So a doctor is not negligent if he uses for the treatment of his patient that degree of knowledge, skill and care ordinarily used by reasonable physicians practicing under the same or similar circumstances and conditions in the same medical specialty. -13- If you find by the greater weight of evidence that either defendant has failed to meet that standard of care, then you may find that many (sic) he was negligent. On the other hand, if you find that they did meet the standard of care, as explained to you, you would find that they did not commit medical negligence. . . . A physician is not liable for what is commonly called a honest error or mistake in judgment unless he was negligent, as I defined that term for you. A physician is not liable if he selects one of several generally approved procedures, diagnoses or courses of treatment, even if the one he selects turns out to be wrong or one not favored by other physicians. The mere fact that a bad result followed the treatment given to Eric Davis does not of itself require you to find that the defendants failed in the duty they owed to their patient. If a doctor exercised the degree of care and skill the law required of him he can not (sic) be found to have failed in his duty simply on the basis of the results that followed. There's no presumption or inference arising from a bad or unexpected result. In this case the fact that Eric Davis ultimately died as a result of his accident and tracheal injury does not create a presumption that Dr. Besst or Dr. Reyes in their care fell below accepted medical standards. Whether or not they did so is a question of fact that you must decide. . . . Appellant contends that the instruction should have included the following paragraph, and that exclusion of the underlined portions was particularly prejudicial: Although some other (physician) (surgeon) (in the specialty) might have used a method of (diagnosis) (treatment) (procedure) different from that used by defendant, this circumstance will not by itself, without more, prove that defendant was negligent. The mere fact that the defendant used an alternative method of (diagnosis) (treatment) (procedure) is not by itself, without more, proof of his negligence. You are to decide whether the (diagnosis) (treatment) (procedure) used by defendant was reasonably (careful) (cautious) (prudent) and in accordance with the -14- standard of care required of a (physician) (surgeon) (specialist) in his field of practice. (Emphasis added.) In Yeager v. Riverside Methodist Hosp. (1985), 24 Ohio App. 3d 54, paragraph one of the syllabus, the court held as follows: A charge to the jury must be viewed in its totality, and if the law is clearly and fairly expressed, no reversal will be predicated upon error in a portion of the charge. Error in a charge does not justify reversal unless the complaining party can show that its substantial rights have been directly affected. Wagenheim v. Alexander & Grant & Co. (1983), 19 Ohio App. 3d 7, paragraph thirteen of the syllabus. The court's charge regarding negligence quoted supra accurately set forth the law. We find no error in the portion quoted by appellant nor elsewhere. Although appellant would have preferred different language regarding alternative treatments, appellant has failed to demonstrate any error which prejudiced her substantial rights. Appellant also contends in this assignment that the court should have specified the corporate defendants in the jury interrogatories. In its charge to the jury at pp. 1102-1103 of the record, the court carefully explained that Doctors Besst and Reyes were employed by CEP and PAA respectively, so in the event you find that either of these doctors committed negligence their negligence would, also, be imputed to their employer. So I'm going to be talking to you in the rest of this charge about Dr. Besst and Dr. Reyes, keeping in mind -15- there are actually four defendants, two groups of two each, the doctor and his association. The court adequately explained to the jury the relationship between the doctors and their corporate employers. The court also gave the jury a tape recording of this charge for consideration during deliberations. The names of the corporate employers appeared on the verdict forms. The fact that the interrogatories did not include the names of the corporate defendants was not prejudicial to appellant. Appellant's fifth assignment of error is overruled. VI. Appellant's sixth assignment of error reads as follows: THE TRIAL COURT ERRED BY EXCLUDING AN (SIC) VIDEOTAPE EVIDENCE DEPICTING THE ACCIDENT AND INJURY AND AT THE SAME TIME ADMITTING APPELLEE DOCTORS IRRELEVANT AND PREJUDICIAL VIDEOTAPE EVIDENCE. Evid. R. 401 defines relevant evidence as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence". Relevant evidence is admissible, unless exceptions apply, while evidence which is not relevant is not admissible. Evid. R. 402. The admissibility of evidence, including evidence consisting of photographs, videos, experiments, reenactments, or simulations of events, is within the discretion of the trial court. See, e.g., Columbus v. Taylor (1988), 39 Ohio St. 3d 162, syllabus. Evidence which purports to represent the facts at issue is only -16- admissible if there is a "substantial similarity" between conditions existing when the representations are made and those existing when the dispute arose. St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio R.R. Co. (1935), 129 Ohio St. 401, paragraph one of the syllabus; see also Pease Co. v. Local Union 1787 (1978), 59 Ohio App. 2d 238, 241. Photographic evidence may be excluded if it is merely duplicative of testimony. Bell v. Giamarco (1988), 50 Ohio App. 3d 61, 66. Appellant's videotape included representations of how Eric Davis' accident and intubation occurred. The first portion of the videotape consisted of a picture of a boy on an ATV taken from an ATV pamphlet. This picture was shown moving jerkily across a photograph of the area where the accident occurred, in what appeared to be broad daylight. The boy eventually strikes the cable and is thrown up and back, although the boy never changes position. The tape proceeds with simplisitic anatomical drawings depicting an intubation, which causes transection of the trachea. Appellant claims that this videotape was relevant and properly authenticated, because it was based on a picture from an ATV pamphlet and photographs of the site, all of which were admitted into evidence. Appellant also argues that the tape was based on witnesses' testimony and accurately depicted the speed of the ATV, time of day, and how the accident occurred. Appellant contends that the medical portion of the tape is supported by expert testimony. -17- Appellant provided no evidence indicating that the videotape fairly and accurately represents the events at issue. The record indicates that the videotape does not accurately represent either the accident or the intubation. The tape shows the accident occuring in daylight, not past dusk as Berkes and others testified. Also, the boy on the videotape never changes position, even when striking the cable, which is obviously not accurate. The videotape also depicted transection of a trachea as a result of intubation by the use of basic anatomical drawings. One of appellant's own medical experts, Dr. David Abramson, admitted at pp. 654-655 that he could not say with certainty what caused transection of the decedent's trachea. Therefore, appellant's videotape was not a fair and accurate representation of the events at issue, and was properly excluded. Appellant also claims that the trial court erred in allowing the jury to see an instructional videotape which showed how a tracheotomy is done and the relevant body structures. The court specifically cautioned the jury that the videotape was a training tape, and was "not meant to indicate to you what happened in this case, it's simply for information for the jury to determine what this procedure involves, the structures of the neck and so forth. . . ." R. 880. Since the videotape was not allowed as representative of what actually occurred in this case, but to help the jury understand the procedures and anatomy involved, it was properly shown to the jury. See Yeager v. -18- Riverside Methodist Hosp., supra. (medical textbook exhibits admitted as demonstrative of witness' testimony). Appellant's sixth assignment of error is without merit. VII. Appellant's seventh assignment of error reads as follows: THE TRIAL COURT ERRED BY GRANTING APPELLEE CLEVELAND ELECTRIC ILLUMINATING COMPANY'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF APPELLANT'S EVIDENCE. In order to determine whether the court properly granted CEI's motion for directed verdict, we must determine what duty CEI owed to decedent. CEI's duty depends on whether decedent was an invitee, licensee or trespasser on CEI's property. See, e.g., Carswell v. Toledo Edison Co. (1988), 53 Ohio App. 3d 82, paragraph one of the syllabus. "A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience" (citations omitted). McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St. 3d 244, 246. A landowner's duty to undiscovered trespasses is to refrain from injuring them by willful or wanton conduct. Id. Willful or wanton conduct requires a purpose or intent to injure. Id. In Wieber v. Rollins (1988), 55 Ohio App. 3d 106, the court held as follows in paragraph three of the syllabus: "Wantonness" implies a failure to exercise any care toward those to whom a duty of care is owing, when the probability that harm will result from such failure is great, and such probability is known to the actor. -19- Wanton misconduct is positive in nature, while mere negligence is naturally negative in character. Licensees are owed the same duty, plus the additional duty of protection from hidden dangers or pitfalls. Wieber, see supra, paragraph one of the syllabus. In this case, there was no evidence that decedent was invited or induced to enter upon CEI's access roads. The evidence indicated that the roads were posted with no trespassing signs and blocked with cables. Accordingly, decedent was a trespasser, and CEI was obligated to refrain from injuring him by wanton or willful conduct. Appellant cites cases involving dangerous instrumentalities. In Carswell, see supra, the court held in paragraph three of the syllabus as follows: An exception to the rule that a property owner or occupier owes to undiscovered trespassers nothing other than to refrain from injuring such trespassers by willful or wanton conduct exists where the owner or occupier maintains a dangerous instrumentality on or immediately adjacent to a public place where the instrument of harm's dangerousness is not readily apparent to children and where it is within easy reach or is susceptible to contact by inadvertent conduct. In this case, decedent was aware that cables were placed across the CEI access roads in a number of locations. He had also avoided similar cables earlier in the day by driving around or over them. Therefore, the dangerousness of the cable was apparent to the decedent, and the exception does not apply. The trial court correctly directed a verdict in favor of CEI, because appellant failed to adduce evidence at trial that -20- CEI's placement or maintenance of the cable constituted wanton or willful conduct. There was no evidence that CEI was aware of the use of its access roads by children or motorized vehicles. There was no evidence of prior accidents on the property, or that complaints of hazards had been made to CEI. Appellant's seventh assignment of error is without merit. VIII. Appellant's eighth assignment of error reads as follows: THE TRIAL COURT ERRED BY GRANTING APPELLEE PARMA COMMUNITY GENERAL HOSPITAL'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF APPELLANT'S EVIDENCE. In Albain v. Flower Hospital (1990), 50 Ohio St. 3d 251, the court held in paragraphs one through four of the syllabus as follows: 1. A hospital's granting of staff privileges to an independent private physician, which the hospital may later revoke under its review procedures, does not establish the requisite level of authority or control over such physician to justify imposing liability against the hospital under the doctrine of respondeat superior. (Hannola v. Lakewood [1980], 68 Ohio App. 2d 61, 67-69, 22 O.O. 3d 63, 66-68, 426 N.E.2d 1187, 1191-1192, insofar as it is inconsistent with this opinion, is hereby disapproved. 2. In regard to staff privileges, a hospital has a direct duty to grant and to continue such privileges only to competent physicians. A hospital is not an insurer of the skills of private physicians to whom staff privileges have been granted. In order to recover for a breach of this duty, a plaintiff injured by the negligence of a staff physician must demonstrate that but for the lack of care in the selection or the retention of the physician, the physician -21- would not have been granted staff privileges, and the plaintiff would not have been injured. 3. Hospitals do not have a nondelegable duty to assure the absence of negligence in the medical care provided by private independent physicians granted staff privileges by the hospital. 4. A hospital may, in narrowly defined situations, under the doctrine of agency by estoppel, be held liable for the negligent acts of a physician to whom it has granted staff privileges. In order to establish such liability, a plaintiff must show that: (1) the hospital made representations leading the plaintiff to believe that the negligent physician was operating as an agent under the hospital's authority, and (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship. Appellant alleged in the complaint that the hospital negligently hired and supervised Dr. Besst and Dr. Reyes. At trial, appellant adduced no evidence showing that the hospital lacked care in selecting Dr. Besst and Dr. Reyes. Appellant also provided no evidence that decedent or his mother relied on representations by the hospital which lead them to believe that the doctor was an agent of the hospital. Since appellant completely failed to produce evidence essential to establish negligence on the part of the hospital, the trial court properly directed a verdict in favor of the hospital. Appellant's eighth assignment of error is without merit. IX. Appellant's ninth assignment of error reads as follows: -22- THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW APPELLANT TO PRESENT HER CASE AGAINST APPELLEE PARMA COMMUNITY GENERAL HOSPITAL. A. THE TRIAL COURT ERRED BY REFUSING TO ALLOW APPELLANT'S MEDICAL EXPERTS TO TESTIFY AS TO ACTS OF DIRECT NEGLIGENCE ON THE PART OF EMPLOYEES OF APPELLEE HOSPITAL. B. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION TO RECONVENE THE DISCOVERY DEPOSITION OF RICHARD S. ADER, M.D. We have already set forth the law relevant to the first part of appellant's ninth assignment in subsection I., supra, when we determined that the trial court properly excluded the testimony of Robert Kelly due to the inadequacy of his report. Appellant argues that the court made the same error with regard to its experts, Dr. Abramson and Dr. Battle. The reports of Dr. Abramson and Dr. Battle do not state that the hospital deviated from the appropriate standard of care. Dr. Abramson's report states that the "health care team" deviated from the acceptable standard. Dr. Battle's report states that Dr. Reyes and Dr. Besst deviated from the acceptable standard. Neither report identifies any negligent conduct by the hospital. Therefore, the reports do not adequately set forth the experts' opinions as to the issues of the hospital's negligence as required by Loc. R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division. The trial court did not err in excluding the testimony of these witnesses as to the hospital's alleged negligence. -23- Appellant also contends that the trial court erred by denying appellant's motion to reconvene the deposition of Dr. Ader. A complete transcript of Dr. Ader's deposition is not in the record, which limits our ability to address appellant's assignment of error. See Volodkevich v. Volodkevich (1989), 48 Ohio App. 3d 313, syllabus (without an adequate record, the court of appeals must presume the validity of the trial court's action). Furthermore, appellant's motion to reconvene fails to indicate that appellant was denied any relevant information during the almost three hour deposition which did take place. The regulation of discovery is within the sound discretion of the trial court. See Russo v. Goodyear Rubber & Tire Co., supra. Appellant has failed to demonstrate that the trial court abused its discretion in refusing to reconvene the deposition. Appellant's ninth assignment of error is overruled. X. Appellant's tenth assignment of error reads as follows: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. -24- In this case, appellant claimed that Dr. Besst and Dr. Reyes negligently cared for the decedent. Appellant's experts testified that the doctors should not have attempted intubation due to the condition of decedent's trachea. They stated that the doctors should have proceeded to do an emergency tracheotomy immediately, and that the operation takes one to two minutes. Alternatively, they claimed that the doctors should have at least secured the lower portion of the trachea and brought in a specialist to perform the tracheotomy. Appellant's experts stated that Dr. Reyes negligently performed the intubation as well. They claimed that he made too many attempts, and that he caused the lower portion of the trachea to completely separate and retract into decedent's chest. On cross-examination, however, Dr. Abramson indicated that the cause of the complete transection could not be determined. Appellant also claimed that Dr. Besst's and Dr. Reyes' respective employers, Community Emergency Physicians and Parma Anesthesia Associates, were negligent by virtue of respondeat superior. A number of medical experts testified on behalf of the doctors and their employers, including an ear, nose and throat specialist; two emergency room doctors; a pediatrician and an anesthesiologist. They testified that Dr. Besst and Dr. Reyes did not fall below the standard of care. All of the doctors' experts testified that attempting intubation was reasonable under the circumstances. Dr. Alonso -25- and Dr. Charnock stated that the current medical literature does not indicate that an emergency tracheotomy must be done first for this injury. Dr. Hostetler stated that intubation, if successful, is the fastest way to establish an airway, and prevents complications which can arise if tracheotomy is attempted first. The doctors' experts also testified that a tracheotomy is not a simple procedure, and that the emergency room is not the optimum setting for it. Dr. Glauser rejected appellant's expert's suggestion that the lower portion of the trachea should have been secured first, because that necessitated choosing to do a surgical airway first. Dr. Glauser also testified that decedent's injury was lethal. Experts for both sides indicated that this type of injury is very rare. There was substantial credible, competent evidence in this case from which the jury could reasonably conclude that Dr. Besst, Dr. Reyes and their employers were not negligent. The jury's verdict was not against the manifest weight of the evidence. Affirmed. -26- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., and *ECONOMUS, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge Peter Economus of the Mahoning County Common Pleas Court.) JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .