COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66930 NICHOLAS & GLORIA CHALKIAS : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION PARMA COMMUNITY HOSPITAL, INC.: ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 20, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-247616 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: REGINALD P. TRUBEY, JR., ESQ. JANICE L. SMALL, ESQ. 75 Public Square, Suite 620 DAVID M. BEST, ESQ. Cleveland, Ohio 44113 JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Ave., Suite 1600 Cleveland, Ohio 44114-1192 - 2 - DYKE, J.: Plaintiff-Appellant, Nicholas Chalkias and his wife, Gloria, appeal a jury verdict granted in favor of Defendant-Appellee, Peter Bambakidis, M.D. in their medical malpractice action. In five assignments of error, appellant claims that the trial court erred in granting appellee's motion for a protective order; erred in striking portions of his expert's testimony; erred in failing to incorporate certain proposed amendments to his jury instructions and erred in excluding his medical bills and hospital photos. Appellant also claims that the jury's verdict was against the manifest weight of the evidence. Upon review, we find appellant's assignments of error to be without merit. Accordingly, the judgment of the trial court is affirmed. Appellant filed the instant action on April 8, 1991, voluntarily dismissing same without prejudice pursuant to Civ.R. 41(A) and R.C. 2305.19 on October 3, 1992. Appellant refiled the action on February 19, 1993 and dismissed co-defendants Parma Community General Hospital and Dr. Wilbur Pannu, leaving appellee as the sole defendant. Appellant's complaint alleged that appellee was negligent in failing to diagnose and treat the allergic reaction he developed to Tegretol, an anticonvulsant drug. Appellant also alleged that appellee was negligent in failing to advise he and his wife to transfer from Parma Community General Hospital on November 8, 1989 to the burn unit of Cleveland - 3 - 1 Metropolitan General Hospital. Trial commenced on January 18, 1994. On January 27, 1994, subsequent to the testimony of several witnesses including expert witnesses for both parties, the jury unanimously found that the appellee was not negligent in the care 2 and treatment of the appellant. The instant appeal followed. I THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S JANUARY 11, 1993, [SIC] MOTION FOR A PROTECTIVE ORDER. In his first assignment of error appellant claims that the trial court granted appellee's motion for a protective order thereby prejudicially excluding the testimony of his rehabilitation 3 specialist, Dr. W. Crowe. 1 It is undisputed that appellant's wife decided to transfer the appellant to St. Alexis Hospital on November 8, 1989. 2 Two independent board certified specialists to wit, a neurologist and dermatologist testified on behalf of the appellee. The latter specialist was identified as a national and inter- national expert in the diagnosis and treatment of Stevens- Johnson syndrome and toxic epidermal necrolysis which appellant developed as a rare complication of his taking Tegretol. A non- board certified internist/pediatrician and family friend testified as appellant's expert witness. 3 Contrary to appellant's arguments, the trial court in responding to appellee's motion for a protective order and immediate hearing, did not exclude the testimony of any of his treating physicians as is evidenced by the following order: Hearing on Mot[.] for Prot[.] Order. Ct[.] now orders that disc[.] depos[.] to be completed prior to trial videos of all witnesses. Vol. 1700, Pg. 155 Entry journalized 1/14/94. - 4 - Appellant's assignment of error raises questions which require this court to consider arguments and evidence presented by the parties to the trial court during the hearing it held in response to appellee's motion. However, appellant has failed to provide this court with the transcript of proceedings generated during this hearing. It is well settled that an appellant has the responsibility of providing the reviewing court with a record of the facts, testimony and evidentiary matters which are necessary to support an assignment of error. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, 314. In the absence of such transcript an appellate court must presume regularity in the trial court's proceedings and accept the validity of its judgment. Knapp v. Edwards Laboratories 4 (1980), 61 Ohio St.2d 197. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN STRIKING PORTIONS OF DR. SOPHIA FOUNTIS' OPINION TESTIMONY CONCERNING THE PROXIMATE CAUSE OF APPELLANT'S INJURIES AND DAMAGES. In his second assignment of error, appellant claims that the trial court committed prejudicial error by excluding certain portions of his expert's testimony. Once again, appellant has 4 Since the jury expressly found that the appellee was not negligent in his care and treatment of appellant, the absence of Dr. Crowe's testimony dealing with damages fails to constitute prejudicial error. Rouse v. Riverside Methodist Hospital (1983), 9 Ohio App.3d 206 and Amato v. Shaw (Nov. 20, 1986), Cuyahoga App. No. 51353, unreported. - 5 - failed to provide this court with the record necessary to review his assignment. Appellant's citation to pages 55-57 of his expert's deposition transcript and page 168 of his "Excerpt of Proceedings" is unavailing as neither provides this court with any indication of the trial court's claimed discussion and rulings on 5 the matter. It appears that appellant has simply omitted the determinative portions of the trial transcript, to wit, those portions which document the introduction of his expert's video deposition and transcript and the objections, discussion and rulings associated therewith. Without such documentation from the record, this court can only speculate as to the specific objections raised by the appellee, the legal argument that ensued and the basis and rationale for the court's exclusionary ruling. This we are not permitted to do. Pursuant to Volodkevich and Knapp, supra, we must presume regularity and overrule appellant's second 5 Appellant's citation to page 168 of the excerpted record demonstrates that a discussion regarding the exclusionary ruling took place but such citation fails to disclose the content of such discussion: Appellants' Counsel: One other thing, your Honor. I would just like to note, as we talked about this morning, just note my objection as to the exclusion of certain testimony that you didn't allow of Dr. Fountis. The Court: Okay. The record will reflect the objection of Mr. Trubey to the Court's rulings on the testimony of Dr. Fountis. (Tr. 168.) Hence, while appellant has indicated his objection he has failed to supply a citation to the record wherein the court responds to such objection. - 6 - assignment of error. III THE TRIAL COURT ERRED WHEN IT FAILED TO INCORPORATE IN ITS CHARGE THE APPELLANTS' PROPOSED AMENDMENTS TO THE JURY INSTRUCTIONS SUBMITTED BY THE APPELLEE. In his third assignment of error appellant does not claim that the instructions given by the trial court were erroneous. Rather, he claims that his proposed amendments to wit, approximately seven amendments, were correct statements of law. Appellate Rule 12(A) requires that errors be specifically argued and supported by the record for purposes of review. Appellant has failed to specify which portions of the record support the multiple amendments he has cited. Accordingly, this court is not obliged to search this excerpted record in an effort to determine the specificity of appellant's argument. Moreover, the excerpted record demonstrates that appellant failed to object or make any comment whatsoever with respect to the court's instruction. Where a party fails to interpose a specific objection to the court's instructions, the error or omission is waived absent a finding of plain error. Reichert v. Ingersoll (1985), 18 Ohio St.3d 220. Our review of the instant jury instruction fails to demonstrate plain error. Such instruction accurately and fairly represents the law with respect to negligence, standards of care for specialists and proximate cause as set forth in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. Such instruction also reflects - 7 - the key issues appellant alleged in his complaint: The allegations which the plaintiff has raised are as follows: First, that the defen- dant, Dr. Peter Bambakidis, was negligent in providing his diagnosis, his care and his treatment of the plaintiff, Nicholas Chalkias. The plaintiff also alleges in this case, specifically that the defendant, Dr. Peter Bambakidis, was negligent in not advising the plaintiff, Nicholas Chalkias, and his wife, Gloria Chalkias, that he is [sic] not to be transferred to St. Alexis Hospital on November 8, 1989, but rather should have been trans- ferred to the burn unit of the Cleveland Metropolitan General Hospital. (Tr. 297) Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW INTO EVIDENCE THE APPELLANT'S MEDICAL BILLS AND METROPOLITAN GENERAL HOSPITAL PICTURES OF THE APPELLANT WHEN HE WAS IN THE HOSPITAL'S BURN UNIT. In his fourth assignment of error, appellant claims that the trial court committed prejudicial error in excluding medical bills and certain photographs. Appellant's arguments are not well taken. In order for medical bills to be admissible, the plaintiff must first prove that the medical services for which he was billed were made necessary by the injuries the defendant caused. Wood v. Elzoheary (1983), 11 Ohio App.3d 27, 29. A review of the excerpted record and transcripts submitted by the appellant fails to demon- strate that he established this causal connection. Appellant never contended that appellee caused the rare, allergic reaction he experienced as a result of taking Tegretol. - 8 - Appellant contended that there was some causal relationship between the severity of his reaction and the failure of appellee to advise he and his wife to transfer to Metropolitan General Hospital's burn unit. While appellant presented evidence that such failure constituted negligence, he never established during his case in chief, any connection between appellee's alleged negligence and the portion or percentage of medical expenses incurred as a result of such alleged negligence. No witness differentiated the bills. Moreover, appellant attempted to introduce these bills into 6 evidence after resting his case. Had the court admitted such bills, the jury could only speculate as to which expenses were incurred as a result of the natural course of appellant's allergic reaction and which were incurred as a result of appellee's alleged negligence. It is well settled that a trial court has broad discretion in determining the admissibility of evidence, and a reviewing court shall not reverse a trial court's judgment for failure to admit or exclude evidence unless the trial court has clearly abused its discretion and the complaining party has suffered material prejudice. Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164. "Abuse of discretion" has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. A decision is 6 The court permitted the appellant to proffer the bills into evidence for appeal purposes only. - 9 - unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court would not have reached the same result based on other evidence or arguments. AAAA Enterprises v. River Place (1990), 50 Ohio St.3d 157, 161. In the instant case, appellant simply failed to identify and apportion his medical bills connecting same with his negligence claim. Accordingly, it was not unreasonable, arbitrary or unconscionable for the trial court to exclude them. Moreover, in light of the jury's failure to find the appellee negligent, appellant was not prejudiced by the ruling. We also find the court's ruling with respect to medical photographs to be proper. Evid.R. 901(A) requires authentication as a condition precedent to admissibility. The record demonstrates that appellant not only failed to authenticate the photographs, he never mentioned them during his case in chief. (Tr. 205-206) No custodial testimony was adduced at trial indicating that such photographs were part of appellant's medical record and appellant conceded that appellee made no stipulation with respect to the admissibility of such photographs as being part of the record. Moreover, appellee never saw such photographs until appellant sought their untimely admission. (See, Defendant's Motion in Limine, Exhibit No. 1, Letter to Appellant's Counsel.) Appellant nevertheless argues that his burn specialist, Dr. Gerding, indirectly authenticated the photographs in his video - 10 - deposition testimony. Appellant's claim is unsupported by such deposition. Our review of same indicates that Dr. Gerding never mentioned "photographs," never stated that such photographs were part of appellant's medical record and never indicated that the 7 photographs were what they purported to be. Appellant attempted to introduce the photographs into evidence after he had rested. Consequently, the jury had neither seen nor heard about them during his case in chief. Had the court admitted the photographs, the jury could only speculate as to their relevancy and purpose. Accordingly, it was not an abuse of discretion for the trial court to exclude photographs sought to be admitted without foundation, 8 authentication or stipulation. See, Evid.R. 401 and 901(A) Appellant's fourth assignment of error is overruled. V THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. In his fifth assignment of error, appellant advances multiple arguments claiming that the jury's verdict is against the manifest 7 Appellant directs this court to a single statement wherein Dr. Gerding gives appellee permission to review certain "slides." However, that is the extent of Dr. Gerding's comment on the matter. Dr. Gerding does not disclose the depictions of such "slides" nor does he state that the contested "photographs" had any relationship to these slides. (See, Tr. 15) Accordingly, appellant has failed to establish authentication, a condition precedent to admissibility. 8 Appellants' reliance on Midland Steel Products. Co. v. UAW Local 486, (1991), 61 Ohio St.3d 121 is misplaced as such applies to videotapes upon a sufficient showing of the reliability of the process of system used to produce the videotape. - 11 - weight of the evidence. However, the appellant has failed to provide this court with a complete and intelligible transcript to enable us to review his manifest weight claim. The trial court's docket demonstrates that trial commenced on January 18, 1994; progressed on January 19, 20, 21, 24, 25, 26 and concluded on January 27, 1994. However, appellant has only sup- plied this court with proceedings from the morning and afternoon sessions of January 21, 1994 (168 pages); the morning session of January 24, 1994 (50 pages and 28 pages); the morning and afternoon sessions of January 25th (5 and 13 pages) and the morning session of January 27, 1994 (40 pages). Appellant has simply failed to include any transcript of proceedings which occurred on January 18th, 19th, 20th, 25th (only 18 pages) and 26th. The excerpted record, such as it is, gives this court no indication of any of the trial court's pre-trial rulings; no certain indication of rulings issued during the parties' cases-in-chief and no indication of either party's introduction of expert videotape testimony or the objections, legal argument and court rulings associated therewith. This latter omission is particularly fatal to a manifest weight review, as such deposition transcripts contain multiple exclusion- ary markings and cryptic notations. Without the aid of a continu- ous, sequential record to explain such markings and notations, this court can only speculate as to what the trial court's rulings were and what the jury actually saw and heard. Moreover, there is no certain indication as to the total number of witnesses who - 12 - testified in this case. When portions of the transcript necessary for the resolution of assigned errors are omitted from the record, the reviewing court has no choice but to presume the validity of the lower court's proceedings, and affirm. See, Knapp v. Edwards, supra. Because appellant has elected to submit a disjointed and incomplete record on appeal, we are precluded from addressing the above-cited assignment of error. His fifth assignment of error is overruled. The judgment of the trial court is affirmed. - 13 - It is ordered that appellees recover of appellants 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. SWEENEY, P.J., AND KARPINSKI, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .