# Yeager v. Riverside Methodist Hospital > Ohio Court of Appeals · March 21, 1985 · 24 Ohio App. 3d 54 URL: https://www.frixlaw.com/law-library/cases/3748155 ## Case - **Full name:** Yeager; Yeager Et Al., Appellants, v. Riverside Methodist Hospital, Appellee, Et Al. - **Court:** Ohio Court of Appeals - **Decided:** March 21, 1985 - **Citations:** 24 Ohio App. 3d 54; 24 Ohio B. 107; 493 N.E.2d 559; 1985 Ohio App. LEXIS 10140 - **Precedential status:** Published - **Opinion:** Dissent by Norris - **Judges:** Norris, Reilly, Strausbaugh - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3748155 ## Opinion text Norris, J., dissenting. As I am unable to agree with either the majority’s conclusions, or its view of the record, I respectfully dissent. In the first place, as Will be pointed out later, defendant’s expert did not testify that Ryan’s printouts indicated only slight distress. Second, the majority’s characterization of defense counsel’s purpose in offering the textbook exhibits is misleading. An accurate characterization of that portion of the transcript is that defense counsel displayed to his expert heart monitor tracings from two medical textbooks, and the expert testified that the tracings depicted severe late decelerations which would lead a prudent physician to conclude that the fetus was experiencing severe distress. Defense counsel then said only that he was offering the exhibits as a predicate to his next question of the witness. Plaintiffs’ second assignment of error challenges the admission into evidence by the trial court of copies of pages from two textbooks, showing exr ampies of heart monitor tracings. The majority says that the trial court did not abuse its discretion in admitting those exhibits. Because the admission by a trial court of irrelevant and misleading evidence constitutes an abuse of discretion, the circumstances underlying the assignment of error deserve a more thorough examination than the cursory treatment afforded them by the majority- Defendant’s expert medical witness testified that these heart monitor tracings represented severe late decelerations which would demonstrate that a fetus was under severe stress, and went on to describe the steps he believed should be taken by a reasonable and prudent physician should he be confronted with such monitor tracings. There was no objection to this testimony. As plaintiffs have not raised an assignment of error concerning the testimony, one must assume that they recognize they waived error by failing to object. However, when defense counsel then sought to give the exhibits (as yet not admitted into evidence) to the jury, plaintiffs did object. The objection was overruled. Surely, the majority does not mean to say that, by failing to object to the testimony, plaintiffs waived objection to displaying the unadmitted exhibits to the jury, and to the admissibility of the exhibits. Defense counsel said only that he wanted the jury to have the exhibits “as a predicate to my next question.” Counsel then proceeded to question the expert witness concerning the meaning of Ryan Yeager’s actual monitor tracings; the textbook tracings were not referred to again in the course of this witness’ testimony. The witness analyzed Ryan’s heart *58 monitor tracings and gave his opinion that, while the exterior monitor tracings showed some definite late decelerations, they were not in the severe range, and that later internal monitor tracings showed only very' mild late deceleration. He concluded that defendant’s response to the tracings had not breached the requisite standard of care. Plaintiffs’ contention at trial was that the fetal heart monitor tracings showed late heart decelerations which were indicative of fetal distress, and required that -Ryan be delivered as soon as possible by cesarean section in order to avoid birth asphyxia and brain damage. They complain that, as there was no testimony indicating that Ryan’s tracings showed severe late decelerations, and no testimony that only severe late decelerations of the nature exhibited in the textbook tracing would require such immediate surgical intervention, the exhibits were irrelevant to the issue at trial and misleading to the jury, as they invited the jury to make unwarranted comparisons with the actual tracings. The argument is well-taken. Upon the state of the evidence, the textbook tracings represented two examples — not the only possible examples — of situations demanding surgical intervention. The witness did not testify that these textbook examples were of tracings depicting the only circumstances under which a cesarean section delivery would be required; nor did he say that surgical intervention would be required only in the event the late decelerations were severe; nor did he say that these textbook tracings depicted the sole possible examples of severe decelerations. As a consequence, and in view of there being no testimony that Ryan’s decelerations were severe, it is difficult to understand the relevancy of the textbook tracings. The natural consequence of giving to the jury textbook examples illustrating extremes, at a time when the expert was testifying concerning photographic “blow-ups” of Ryan’s tracings, was to invite the jury to compare those examples with Ryan’s tracings — to invite a premature deliberation by the jury into the medical significance of the obvious differences in the sets of tracings. Obviously, such a comparison, upon the state of the evidence at that time, was beyond the competence of lay jurors. If a comparison were to be made of the significance of the differences, it could only be made by utilizing medical expertise to interpret the tracings and differences. Rather than assisting the jury, the textbook examples only invited confusion. Their use, in the absence of expert testimony explaining their significance to the facts of this case, was almost certain to mislead the jury. Over the objection of plaintiffs’ counsel, the trial court permitted defense counsel to display the textbook examples to the jury before they had been admitted into evidence — they were admitted at a later point in the trial, again, over plaintiffs’ objection. Permitting such a submission also constituted error, since it would be impossible to expect jurors to forget such graphic illustrations had the trial court later issued the proper ruling that the exhibits were inadmissible into evidence. The second assignment of error should be sustained. The first assignment of error is perplexing, when viewed in concert with the second. Because the word “judgment” connotes subjectivity, trial courts should entertain its use in charges of this nature with great reluctance and skepticism. Indeed, the majority concedes that, when viewed alone, the portion of the trial court’s charge to the jury excerpted by plaintiffs suggests a subjective standard of care. Under ordinary circumstances, I would be inclined to conclude that the isolated use of the word “judgment,” in the context of the *59 entire charge, did not clearly amount to a misstating of the appropriate standard of care in accordance with the law as announced in Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127 [ 75 O.O.2d 184 ]. However, we are not here confronted with ordinary circumstances. The charge complained of was apparently adopted from one submitted by defense counsel. The authority cited to the trial court, in support of the proposed charge, had nothing at all to do with the specific medical malpractice charge sought by defendant. When it is considered that both actions of the trial court which are assigned as error were the product of defense counsel’s urging, we are required to view the potential prejudice to plaintiffs’ cause with close scrutiny. If trial counsel are prepared to press for tactical advantage at trial, they must be prepared to live with the consequences on appeal. Accordingly, when the cumulative effect of the trial court’s rulings is considered, I am unable to say that plaintiffs were afforded a fair opportunity to present their cause to the jury. On that basis, then, the first assignment of error should be sustained. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3748155. Public record. Not legal advice.