Ramage v. Central Ohio Emergency Serv., Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Ramage et al., Appellees, v. Central Ohio Emergency
Services, Inc., et al., Appellants.
[Cite as Ramage v. Central Ohio Emergency Serv., Inc.
(1992), Ohio St.3d .]
Negligence -- Requirements to establish negligence of a nurse
-- Wrongful death -- Pursuant to R.C. 2125.02, other next
of kin, although not presumed to have sustained damages,
may recover damages for mental anguish and loss of society
upon proper proof -- Interrogatories -- Civ. R. 49(B),
construed -- Medical malpractice -- Issue of proximate
cause -- Motion for directed verdict denied, when --
Evidence -- Party during direct examination of its expert
witness may inquire whether expert agrees with opinions
expressed in publications by adverse party's expert
witness -- Allowance or refusal of leading questions of a
witness is within sound discretion of court.
1. In a negligence action involving the professional
skill and judgment of a nurse, expert testimony must be
presented to establish the prevailing standard of care, a
breach of that standard, and that the nurse's negligence,
if any, was the proximate cause of the patient's injury.
2. Pursuant to the Ohio wrongful death statute, R.C. 2125.02,
other next of kin, although not presumed to have sustained
damages, may recover damages for mental anguish and loss
of society upon proper proof thereof, even though there is
a surviving parent, spouse, or minor children.
3. Although Civ. R. 49(B) mandates that a trial court submit
interrogatories to the jury once requested to do so, the
court retains limited discretion to reject submission of
the interrogatories where the request is untimely or the
proposed interrogatories are ambiguous, confusing,
redundant, or otherwise legally objectionable. Proper
jury interrogatories must address determinative issues and
must be based upon the evidence presented.
4. Where there is competent expert testimony, based on
reasonable medical probability, that the negligent acts of
a physician were the direct and proximate cause of the
patient's death, a trial court correctly denies a motion
for directed verdict on the issue of proximate cause.

(Cooper v. Sisters of Charity of Cincinnati, Inc. [1971],
27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97; and
Strother v. Hutchinson [1981], 67 Ohio St.2d 282, 21
O.O.3d 177, 423 N.E.2d 567, construed and followed.)
5. A party may, during the direct examination of its expert
witness, inquire whether that expert agrees with the
opinions expressed in publications by the adverse party's
expert witness.
6. The allowing or refusing of leading questions in the
examination of a witness must very largely be subject to
the control of the court, in the exercise of a sound
discretion. In the absence of an abuse of discretion, the
trial court's ruling must stand. (Seley v. G.D. Searle &
Co. [1981], 67 Ohio St.2d 192, 204, 21 O.O.3d 121, 128,
423 N.E.2d 831, 840, followed.)
(Nos. 91-351, 91-370 and 91-371 -- Submitted January 8,
1992 -- Decided June 24, 1992.)
Certified by and Appeal from the Court of Appeals for
Guernsey County, Nos. 89-CA-20, 89-CA-43 and 89-CA-49.
This case involves the death of Ashley Ramage, a
two-year-old child. Ashley was the daughter of Richard A.
Ramage ("Ramage") and lived with her father at her
grandparents' home in Byesville, Ohio. On the night of
February 28, 1987, Ramage left Ashley with neighbors, the
McJessys, so that he could socialize with friends. The
McJessys, particularly Jill McJessy, had babysat for Ashley on
a number of occasions.
The McJessys picked up Ashley at her grandparents' home at
approximately 6:00 p.m. and took her back to their home.
During the evening and when she went to bed at 10:00 p.m.,
Ashley did not exhibit any signs of being ill. Ashley slept in
Jill's twin bed with her.
At approximately 1:00 a.m., Jill awoke and found Ashley
shaking. Ashley was hot, and, according to Jill, appeared to
be having a convulsion. Jill called her mother, Judy McJessy,
who was in her bedroom. Judy told Jill to undress Ashley while
she drew a bath. Jill and Judy placed Ashley in the bathtub
and began to rinse her body off. They then located Ramage by
telephone and, as they prepared to leave for Guernsey Memorial
Hospital (the "hospital"), he arrived. Mr. McJessy then drove
his wife, daughter, Ashley and Ramage to the hospital.
Dr. Eugene J. Coles, an employee of appellant Central Ohio
Emergency Services, Inc. ("COES"), was the physician on duty in
the emergency room when Ashley arrived. The hospital had a
contract with COES whereby COES provided physicians as
independent contractors for staffing the hospital's emergency
room. The emergency room was also staffed by Carol Hoskins, a
registered nurse, and Anita J. Meker, a licensed practical
nurse, both employees of the hospital.
Ramage, Ashley, and the McJessys arrived at the hospital
at approximately 1:35 a.m. At that time, there were no other
patients in the emergency room. Nurse Meker was the first to
examine Ashley and to speak with Jill and Judy McJessy. When
Meker asked what was wrong, Jill stated that at around 1:00
a.m., Ashley had had "a temperature" and was having a
convulsion, and that Ashley had vomited while at home. When
questioned as to what she meant by the term "convulsion," Jill

indicated it was just like what Ashley was doing in the
emergency room -- she was shaking. Meker noted in the medical
record that Ashley was having chills and was shaking when Jill
made this comment.
As Ashley was brought into the emergency room, she vomited
again. Meker described the vomit as a small amount of clear
fluid. That observation was disputed by Jill, Judy and Ramage,
who remembered that Ashley vomited a large amount of undigested
food after she was seated on one of the tables in the emergency
room.
Ashley was undressed and placed in a hospital gown. Meker
took Ashley's temperature rectally which was recorded as 104.6
degrees. Ashley's pulse was 128, her respiration was 28, and
her blood pressure was 90 over 50. Meker examined Ashley for
any visible marks or bruises but found none. At approximately
1:45 a.m., pursuant to Dr. Coles' orders, Meker gave Ashley a
Tylenol suppository to help reduce her fever.
Ashley was then seen by Dr. Coles, who also took a history
from Jill and Judy as well as from Ramage. Dr. Coles examined
the child and ordered a complete blood count, chest x-rays, and
a strep screen. He examined her ears, throat and torso, but
failed to find a cause for the fever. According to Dr. Coles,
during his examination, Ashley was alert and her skin was dry,
indicating that she was not dehydrated. At that time, it was
his impression that Ashley had suffered a simple febrile
seizure.
According to Meker, minutes after being given the Tylenol,
Ashley's condition began to improve. Ashley appeared to be
alert and talkative and, prior to her discharge, wanted to get
down from the examining table. Jill, Judy and Ramage, however,
each testified that Ashley's physical appearance never changed
from the time of her arrival until her discharge.
Dr. Coles reviewed Ashley's chest x-rays and blood tests
and found nothing unusual. He examined her a second time and
ordered a second set of blood tests. While in the emergency
room, Ashley ate two popsicles that the nurses gave her to help
with her fever, to give her fluids, and to distract her while
blood was being drawn. According to the nurses, after eating
the popsicles, Ashley was alert and talkative. Within
forty-five minutes after her arrival, her temperature began to
decrease. By 2:21 a.m., her temperature was recorded as 103.2
degrees.
Ashley was discharged from the emergency room at 2:50
a.m. Both Dr. Coles and the nurses continued to monitor and
observe her prior to her discharge. Her condition had
improved, and her temperature had continued to decrease.
Neither Dr. Coles nor the nurses recalled any episode of a
seizure, other than some "shaking," during this time nor did
they recall being told by either Ramage, Jill or Judy of
another seizure. Nor, apparently, are additional seizures
noted in the medical records. Jill, Judy and Ramage, however,
each testified that he saw what appeared to be the start of a
second seizure while Ashley was in the emergency room.
By 2:45 a.m., Ashley's temperature was recorded as 101.4
degrees. Dr. Coles diagnosed Ashley as having a flu syndrome
and made the decision that Ashley should be allowed to return
home with instructions that Ramage monitor her fever. Dr.

Coles instructed Ramage and Jill and Judy to give Ashley plenty
of fluids to avoid dehydration as well as Tylenol liquid every
four hours to control the fever.
The nurses also gave Ramage further instructions, which
included a written instruction sheet that reiterated that
Ashley be given plenty of fluids and medications as directed,
including one and one-half teaspoons of Tylenol every four
hours so long as she continued to show a fever. Ramage was
given two prepackaged doses of Tylenol to give to Ashley for
the next two four-hour periods.
On the way home from the hospital, the McJessys and Ramage
stopped at a store and purchased some fruit juice and
additional Tylenol. Once home, Ramage put Ashley to bed
immediately.
According to Ramage, he woke Ashley around 4:15 a.m.
(approximately forty-five minutes after putting her to bed),
and gave her another dosage of Tylenol. When he went to again
awaken her between 9:00 a.m. and 9:15 a.m., she was dead in her
crib.
On February 18, 1988, Ramage, individually, and as
administrator of the estate of Ashley Ramage ("appellee"
herein), filed suit against Dr. Coles, COES, and the hospital,
alleging that they or their employees or both were negligent in
the treatment of Ashley on March 1, 1987 in the emergency room
of the hospital. Ramage further alleged that this negligent
treatment was the proximate cause of Ashley's death. Ramage
sought damages under both survivorship and wrongful death
causes of action.
At trial, the court granted the motions of Dr. Coles,
COES, and the hospital for a directed verdict on Ramage's
survivorship claim. The court also declined to submit
interrogatories proposed by the appellants asking the jury to
state the manner in which Dr. Coles, COES and the hospital
nursing staff were negligent and the manner in which their
negligence was the proximate cause of Ashley's death. The
court, after initially objecting to the wording of the proposed
interrogatories, gave no reason for the denial, despite
counsel's attempted amendment of the wording.
On November 20, 1989, the jury returned a verdict in favor
of Ramage, finding Dr. Coles to be seventy-five percent liable
and the hospital to be twenty-five percent liable. The jury
awarded Ramage $750,000 in damages, and judgment was entered
upon the verdict against Dr. Coles, COES and the hospital.
The court of appeals affirmed the trial court's judgment.
On February 12, 1991, the court of appeals certified the record
of the case to this court for final review and determination
(case Nos. 91-351 and 91-371), finding its judgment to be in
conflict with the decisions of several other appellate
districts with regard to the issues of the grandparents' right
to recover as next of kin under the wrongful death statute and
the trial court's duty to submit requested interrogatories to
the jury. This court allowed a motion to certify the record on
March 27, 1991 on the remaining issues (case No. 91-370).

Wolske & Blue, Gerald S. Leeseberg and Michael S. Miller,
for appellees.
Jacobson, Maynard, Tuschman & Kalur, Karen L. Clouse,

Daniel J. White and Richard W. Stuhr, for appellants Central
Ohio Emergency Services, Inc. and Eugene J. Coles, M.D.
Bricker & Eckler, Michael J. Renner, Charles D. Smith and
Catherine Ballard, for appellant Guernsey Memorial Hospital.
Jones, Day, Reavis & Pogue, Michael K. Gire and Richard A.
Cordray, urging reversal for amicus curiae, Ohio Hospital
Association.

Moyer, C.J. Appellants, Central Ohio Emergency
Services, Inc. and Eugene J. Coles, M.D., assert four
propositions of law, and appellant Guernsey Memorial Hospital
argues seven propositions of law, which effectively present
seven issues for our consideration. For the following reasons,
the judgment of the court of appeals is affirmed in part and
reversed in part.
I
In its first two propositions of law, the hospital asserts
that the court of appeals erred in finding that expert
testimony was unnecessary to establish the prevailing standard
of care, a breach of the standard by the emergency room nurses,
and that the alleged breach was a proximate cause of the
decedent's injury. We agree.
Unless a matter is within the comprehension of a
layperson, expert testimony is necessary. Evid. R. 702 and
703. Experts have the knowledge, training and experience to
enlighten the jury concerning the facts and their opinion
regarding the facts. McKay Machine Co. v. Rodman (1967), 11
Ohio St.2d 77, 40 O.O.2d 87, 228 N.E.2d 304.
It is well settled in Ohio that in order to prevail in a
medical malpractice claim, a plaintiff must demonstrate through
expert testimony that, among other things, the treatment
provided did not meet the prevailing standard of care.
"Proof of the recognized standards must necessarily be
provided through expert testimony. This expert must be
qualified to express an opinion concerning the specific
standard of care that prevails in the medical community in
which the alleged malpractice took place, according to the body
of law that has developed in this area of evidence." Bruni v.
Tatsumi (1976), 46 Ohio St.2d 127, 131-132, 75 O.O.2d 184, 187,
346 N.E.2d 673, 677-678.
Although this court has previously held that an action
filed against a nurse in his or her professional capacity does
not fall within the traditional definition of "malpractice,"
Richardson v. Doe (1964), 176 Ohio St. 370, 27 O.O.2d 345, 199
N.E.2d 878, we conclude that expert testimony is necessary to
establish the prevailing standard of care where the
professional skills and judgment of a nurse are alleged to be
deficient. Ohio courts have long recognized this principle.
"Where the issue is one of an exercise of judgment or
skill requiring the specialized training of a nurse, expert-
opinion evidence would be required." Johnson v. Grant Hosp.
(1972), 31 Ohio App.2d 118, 124-125, 60 O.O.2d 202, 205, 286
N.E.2d 308, 313, reversed on other grounds (1972), 32 Ohio
St.2d 169, 61 O.O.2d 413, 291 N.E.2d 440. See, also, Albain v.
Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038; and
Hundemer v. Sisters of Charity (1969), 22 Ohio App.2d 119, 51
O.O.2d 243, 258 N.E.2d 611.

Ramage asserts that this case falls within the "common
knowledge exception." Under this exception, matters of common
knowledge and experience, subjects which are within the
ordinary, common and general knowledge and experience of
mankind, need not be established by expert opinion testimony.
Johnson v. Grant Hosp., supra. Ramage argues that the alleged
negligence of the nurses in this case occurred merely in their
observation and reporting of the decedent's condition to the
doctor and that this involves matters within the common
knowledge and experience of the jurors.
In support, Ramage cites several Ohio cases involving
allegations of nursing negligence in which it was held that
expert opinion testimony was unnecessary to establish the
standard of care and a breach thereof. Jones v. Hawkes Hosp.
of Mt. Carmel (1964), 175 Ohio St. 503, 26 O.O.2d 170, 196
N.E.2d 592; Burks v. Christ Hosp. (1969), 19 Ohio St.2d 128, 48
O.O.2d 117, 249 N.E.2d 829. However, Jones and Burks involved
allegations of negligence with regard to patients who fell from
their hospital beds while unattended. Such allegations were
claims of ordinary negligence. The allegations in this case go
to the professional skill and judgment of the nurses --
matters not within the common knowledge and experience of the
jurors.
In his complaint, Ramage alleged that "Defendants, Central
Ohio Emergency Services, Inc., and Guernsey Memorial Hospital,
by and through their agents or employees, actual or ostensible,
Defendant, Eugene J. Coles, M.D., and John Doe, M.D., and John
Doe, Inc., were professionally negligent and did fall below the
standard of care of ordinarily careful, skillful and prudent
physicians and other health care professionals in that they
failed to properly diagnose, treat and care for Plaintiff's
decedent's true medical condition." (Emphasis added.)
Further, "[a]s a direct and proximate result of the negligence
of the Defendants, Plaintiff's decedent suffered bodily injury
and experienced pain, suffering and mental anguish." Moreover,
the testimony at trial concerned the treatment and care the
decedent received from the team of health-care professionals,
including the nurses, in the emergency room -- matters not
within the common knowledge and experience of jurors.
As any negligence of the nurses in this matter and
proximate causation were not apparent to a layperson, expert
testimony was needed to establish the nurses' negligence, if
any, and to establish that their negligence, if any, was the
proximate cause of Ashley's injury. Where the alleged
negligence involves the professional skill and judgment of a
nurse, expert testimony must be presented to establish the
prevailing standard of care, a breach of that standard, and
that the nurse's negligence, if any, was the proximate cause of
the patient's injury. Therefore, we reverse the judgment of
the court of appeals with respect to its conclusion that expert
testimony regarding the standard of care required of the
emergency room nurses, a breach thereof, and its proximate
causation of Ashley's injury was unnecessary.
II
Next, the hospital, COES and Dr. Coles argue that the
judgment of the court below should be reversed because the jury
was permitted to consider evidence of the "mental anguish" and

"loss of society" of Richard and Janet Ramage, Ashley's
grandparents. Recovery by such persons, they contend, is
precluded as a matter of law under R.C. 2125.02, the Ohio
wrongful death statute. R.C. 2125.02 provides, in part:
"(A)(1) An action for wrongful death shall be brought in
the name of the personal representative of the decedent for the
exclusive benefit of the surviving spouse, the children, and
the parents of the decedent, all of whom are rebuttably
presumed to have suffered damages by reason of the wrongful
death, and for the exclusive benefit of the other next of kin
of the decedent.
"***
"(B) Compensatory damages may be awarded in an action for
wrongful death and may include damages for the following:
"***
"(3) Loss of the society of the decedent, including loss
of companionship *** suffered by the surviving spouse, minor
children, parents, or next of kin;
"***
"(5) The mental anguish incurred by the surviving spouse,
minor children, parents, or next of kin."
Appellants cite an appellate court decision which has
interpreted R.C. 2125.02 to permit recovery by other next of
kin under the statute only where the decedent is not survived
by a spouse, parent, or children. See Bennett, Admx. v.
Cleveland (June 5, 1986), Cuyahoga App. No. 50479, unreported.
See, also, Molton v. Cleveland (C.A.6, 1988), 839 F.2d 240; and
Urseth v. Dayton (S.D.Ohio 1987), 680 F.Supp. 1150. Appellants
also cite the leading treatise in this area of the law,
McCormac, Wrongful Death in Ohio (1989 Supp.), Section 2.07.
However, Judge McCormac has recently taken the view that next
of kin other than the surviving parent, spouse, or minor child
of the decedent may recover damages for mental anguish, even if
there is a surviving parent, spouse, or minor child. Shoemaker
v. Crawford (Dec. 24, 1991), Franklin App. No. 91AP-358,
unreported, 1991 WL 274886, motion and cross-motion to certify
record allowed in (1992), 63 Ohio St.3d 1473, N.E.2d .
In response, Ramage cites a number of appellate court
decisions which have concluded that other next of kin may
recover under R.C. 2125.02 even though there is a surviving
parent, spouse, or minor children. In re Estate of Forbes
(Aug. 25, 1988), Cuyahoga App. No. 54226, unreported; 1988 WL
88853; Parker v. Bd. of Edn. of Sylvania City School Dist.
(Mar. 11, 1988), Lucas App. No. L-87-028, unreported; 1988 WL
30518; and Shoemaker, supra.
Appellants focus on the language of R.C. 2125.02(B)(3) and
(5). Specifically, they note that the use of the disjunctive
word "or" in both subsections of the statute indicates that
next of kin may recover only if the decedent is not survived by
a parent, spouse, or children. We disagree. R.C. 1.02(F)
permits "or" to be read as "and" if appropriate. An
examination of the purposes behind the wrongful death statute
reveals that it is appropriate here.
This court has held that the wrongful death statute is
"remedial in nature, and should be construed liberally." Kyes
v. Penn RR. Co. (1952), 158 Ohio St. 362, 49 O.O.2d 239, 109
N.E.2d 503, paragraph two of the syllabus. See, also, French

v. Dwiggens (1984), 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827,
syllabus ("R.C. 2125.02, as amended, effective February 5,
1982, is remedial in nature as written and promulgated by the
General Assembly, and applies to all wrongful death actions
tried in any forum on or after that date."). Under R.C. 1.11,
laws which are remedial in nature must be liberally construed
to promote their purposes. See Lawson v. Atwood (1989), 42 Ohio
St.3d 69, 72, 536 N.E.2d 1167, 1169; and Barton v. DePew
(1988), 47 Ohio App.3d 107, 109, 547 N.E.2d 995, 996.
We believe that the General Assembly intended that in
addition to the surviving parent, spouse, and minor children,
brothers, sisters, adult children and other next of kin may
also recover for the mental anguish suffered as a result of the
death of their loved one. In R.C. 2125.02, the General
Assembly recognized that the bonds such persons may enjoy with
the decedent may be different from those of the surviving
parent, spouse, and minor children, and so provided that other
next of kin are not presumed to have suffered damages but must
instead prove their damages. We cannot agree with appellants
that the General Assembly intended to exclude next of kin
simply because another category of survivors exists. To hold
otherwise would be contrary to the remedial purposes of the
statute. Thus, we hold that under R.C. 2125.02, other next of
kin, although not presumed to have sustained damages, may
recover damages for mental anguish and loss of services upon
proper proof thereof, even though there may be a surviving
parent, spouse, or minor children. We, therefore, affirm the
judgment of the court of appeals that R.C. 2125.02 did not
preclude Ashley's grandparents from testifying concerning, or
recovering for, their mental anguish and loss of society
resulting from Ashley's death.
III
The appellants next contend that the trial court committed
reversible error by failing to submit certain requested defense
interrogatories to the jury. We disagree.
The trial court refused to submit the following
interrogatories requested by the hospital:
"JURY INTERROGATORY NO. 3
"Do you find, by a preponderance of the evidence, that Dr.
Coles was an employee or agent of Guernsey Memorial Hospital at
the time he treated Ashley Ramage?"
"JURY INTERROGATORY NO. 4
"Do you find, by a preponderance of the evidence, that Mr.
Ramage or the McJessy's [sic] would have taken any different
course of action on March 1, 1987, had they known that Dr.
Coles was not an agent or employee of Guernsey Memorial
Hospital?"
COES and Dr. Coles requested that the following jury
interrogatories be submitted, but the court declined to do so.
"JURY INTERROGATORY NO. 2
"2. State below specifically the manner in which
Defendants Central Ohio Emergency Services, Inc. and Eugene J.
Coles, M.D. were negligent in their care and treatment of
Plaintiff's decedent, Ashley D. Ramage."
"JURY INTERROGATORY NO. 4
"4. Please state below specifically the manner in which
Defendants Central Ohio Emergency Services, Inc. and Eugene J.

Coles, M.D.'s negligence was a proximate cause of the death of
Plaintiff's decedent, Ashley D. Ramage."
"JURY INTERROGATORY NO. 5
"5. Do you find, by a greater weight of the evidence,
that Rick Ramage suffered any damages caused by the death of
Plaintiff's decedent, Ashley D. Ramage, and which were
proximately caused by the negligence of Defendants Central Ohio
Emergency Services, Inc. and Eugene J. Coles, M.D.?"
"JURY INTERROGATORY NO. 6
"6. Please state below the total amount of damages you
find that Rick Ramage suffered which were proximately caused by
the negligence of Defendants Central Ohio Emergency Services,
Inc. and Eugene J. Coles, M.D."
Civ. R. 49(B), which governs the use of jury
interrogatories, provides in part:
"The court shall submit written interrogatories to the
jury, together with appropriate forms for a general verdict,
upon request of any party prior to the commencement of
argument. Counsel shall submit the proposed interrogatories to
the court and to opposing counsel at such time. The court
shall inform counsel of its proposed action upon the requests
prior to their arguments to the jury, but the interrogatories
shall be submitted to the jury in the form the court approves.
The interrogatories may be directed to one or more
determinative issues whether issues of fact or mixed issues of
fact or law.
"The court shall give such explanation or instruction as
may be necessary to enable the jury both to make answers to the
interrogatories and to render a general verdict, and the court
shall direct the jury both to make written answers and to
render a general verdict."
Jury interrogatories serve an important function. "***
The essential purpose to be served by interrogatories is to
test the correctness of a general verdict by eliciting from the
jury its assessment of the determinative issues presented by a
given controversy in the context of evidence presented at
trial." Cincinnati Riverfront Coliseum, Inc. v. McNulty Co.
(1986), 28 Ohio St.3d 333, 336-337, 28 OBR 400, 402-403, 504
N.E.2d 415, 418. However, the disputed interrogatories in this
case do not serve that function.
Although Civ. R. 49(B) mandates that a trial court submit
interrogatories to the jury once requested to do so, the court
retains limited discretion to reject submission of the
interrogatories where the request is untimely or the proposed
interrogatories are ambiguous, confusing, redundant, or
otherwise legally objectionable. Proper jury interrogatories
must address determinative issues and must be based upon trial
evidence. As this court has stated, Civ. R. 49(B) does not
require that the "'*** trial judge [act as] a mere conduit who
must submit all interrogatories counsel may propose. Authority
is still vested in the judge to control the substance and form
of the questions, and if the interrogatories are not based on
the evidence, are incomplete, ambiguous or otherwise legally
objectionable, the judge need not submit them to the jury.'"
Ragone v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St.2d
161, 165-166, 71 O.O.2d 164, 166, 327 N.E.2d 645, 649, citing
the decision of the court below in that case.

In the present case, the trial court properly exercised
judicial discretion in not submitting the disputed jury
interrogatories, as they were inappropriate. The third and
fourth interrogatories submitted by the hospital did not go to
determinative issues in the case. Ramage's claim against the
hospital was with respect to the alleged negligence of the
nurses, who were employees of the hospital. Ramage did not
contend, and the evidence adduced at trial did not indicate,
that Dr. Coles was an employee of the hospital. Thus,
interrogatory No. 3 was irrelevant and unnecessary. Similarly,
interrogatory No. 4 did not go to a determinative issue.
Appellants COES and Dr. Coles argue that the trial court
erred in failing to submit their proposed second and fourth
interrogatories. Only one act of negligence was alleged
against COES and Dr. Coles, i.e., failure to admit Ashley to
the hospital for further care and treatment. Thus, these
proposed interrogatories were unnecessary. Where the
determinative issues and the issues submitted to the jury for
its verdict are identical, there is no function for an
interrogatory. Richley v. Liechty (1975), 44 Ohio App.2d 359,
363, 73 O.O.2d 408, 410, 338 N.E.2d 789, 792. COES and Dr.
Coles do not argue that the court's failure to submit the fifth
and sixth interrogatories requested by them was error.
As the trial court did not err as a matter of law or abuse
its discretion in refusing to submit to the jury these proposed
interrogatories, we affirm the judgment of the court of appeals
that the trial court properly refused to submit them to the
jury.
IV
Appellants COES and Dr. Coles contend that the trial court
also erred in permitting Ramage's expert witness to testify
that Ashley suffered from a small bowel obstruction at the time
of her death, and that by doing so the court permitted Ramage
to present a new theory of liability not revealed in
discovery. At trial, Ramage's counsel asked his expert, Dr.
John Bomalaski, to read Ashley's chest x-rays taken at the
hospital. Dr. Bomalaski had not seen the x-rays prior to trial
and counsel for all the appellants objected to any testimony
regarding the x-rays. The court sustained the objection in
part and permitted Ramage's counsel only to ask Dr. Bomalaski
whether the information contained in the x-rays was consistent
with his opinion that Ashley should not have been discharged
from the emergency room. Thus, there was only a passing
reference to the putative bowel obstruction. The court did not
permit Ramage to present evidence that Dr. Coles breached any
standard of care with regard to the bowel obstruction. No new
theory of liability was presented to the jury. Thus, the trial
court did not err with respect to the passing reference to a
small bowel obstruction.
V
Appellants COES and Dr. Coles also assert that the trial
court erred in failing to grant their motion for a directed
verdict on the issue of proximate cause. The strict standard
for granting a directed verdict is found in Civ. R. 50(A)(4):
"When a motion for a directed verdict has been properly
made, and the trial court, after construing the evidence most
strongly in favor of the party against whom the motion is

directed, finds that upon any determinative issue that
reasonable minds could come to but one conclusion upon the
evidence submitted and that conclusion is adverse to such
party, the court shall sustain the motion ***."
In Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284,
21 O.O.3d 177, 178-179, 423 N.E.2d 467, 469, this court
explained this standard:
"When considering a motion for a directed verdict, a trial
court must construe the evidence most strongly in favor of the
party against whom the motion is directed. ***
"***
"The law in Ohio regarding directed verdicts is well
formulated. *** Thus, 'if there is substantial competent
evidence to support the party against whom the motion is made,
upon which evidence reasonable minds might reach different
conclusions, the motion must be denied. Kellerman v. J.S.
Durig Co. (1964), 176 Ohio St. 320 [27 O.O.2d 241, 199 N.E.2d
562] ***.' Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115 [4
O.O.3d 243, 244, 363 N.E.2d 367, 368]."
Our review of the record indicates that there was
substantial competent evidence on which reasonable minds could
differ. Ramage's expert testified that Dr. Coles was negligent
in failing to admit Ashley for further care and treatment and
that this failure was the proximate cause of her death.
Appellants COES and Dr. Coles argue that this expert testimony
was contradicted on cross-examination. We fail to see such a
contradiction. On cross-examination, the expert was asked
several hypothetical questions so different from the facts in
this case that any apparent contradiction is insignificant.
The trial court properly denied the motion for a directed
verdict, and the court of appeals properly affirmed that
decision.
We, therefore, hold that where there is competent expert
testimony, based on reasonable medical probability, that the
negligent acts of a physician were the direct and proximate
cause of the patient's death, a trial court correctly denies a
motion for directed verdict on the issue of proximate cause.
Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27
Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97; Strother v.
Hutchinson, supra.
VI
The appellant hospital next asserts that the trial court
erred in permitting Ramage's counsel to inquire during the
direct examination of its expert witness as to whether he
agreed with the opinions of the hospital's potential expert
witness, Dr. Douglas A. Rund, found in a book written by that
expert. Unlike the evidentiary rules of the federal courts,
the Ohio Rules of Evidence do not provide for the learned
treatise exception to the hearsay rule. In Ohio, textbooks and
other learned treatises are considered hearsay, may not be used
as substantive evidence, and are specifically limited to
impeachment purposes only. Giannelli, Ohio Evidence Manual
(1989), Section 702.06, Author's Comment; Piotrowski v. Corey
Hosp. (1961), 172 Ohio St. 61, 15 O.O.2d 126, 173 N.E.2d 355;
Lambert v. Dally (1972), 30 Ohio App.2d 36, 59 O.O.2d 29, 281
N.E.2d 857; Hallworth v. Republic Steel Corp. (1950), 153 Ohio
St. 349, 41 O.O. 341, 91 N.E.2d 690.

Significantly, although Ramage's expert did not express an
opinion concerning the actions of the nurses -- the claim
against the hospital -- the hospital asserts this as error.
Ramage's expert, Dr. John Bomalaski, testified solely as to the
standard of care with respect to the emergency room physician,
Dr. Coles. Dr. Bomalaski's testimony did not reach the
standard of care of the nurses. Further, the passage from Dr.
Rund's book was not used as substantive evidence. The passage
was used only in anticipation of the live testimony of Dr.
Rund. In fact, Dr. Rund had been asked about the passage in
his deposition filed by Ramage with the court prior to trial.
However, COES and Dr. Coles chose not to call Dr. Rund to
testify at trial. The quotation from Dr. Rund's book was
proper in the direct examination of Dr. Bomalaski as it was not
used as substantive evidence. We, therefore, hold that a party
may, during the direct examination of its expert witness,
inquire whether that expert agrees with the opinions expressed
in publications by the adverse party's expert witness.
VII
Finally, the appellant hospital argues that the trial
court's judgment must be reversed because it was not permitted
to question its own witness, JoEllen McCance, as if on cross-
examination. The hospital argues in the alternative that
McCance was a hostile witness or was closely identified with
Ramage and, therefore, it should have been permitted to ask her
leading questions. McCance is Ramage's sister and also is
employed by the hospital as a nurse.
As this court has stated: "'The allowing or refusing of
leading questions in the examination of a witness must very
largely be subject to the control of the court, in the exercise
of a sound discretion.'" Seley v. G.D. Searle & Co. (1981), 67
Ohio St.2d 192, 204, 21 O.O.3d 121, 128, 423 N.E.2d 831, 840,
citing Evans v. State (1873), 24 Ohio St. 458, 462; and State
v. Wallen (1969), 21 Ohio App.2d 27, 36, 50 O.O.2d 50, 55, 254
N.E.2d 716, 722.
Unquestionably, the plaintiff's sister, McCance, was
identified with him. However, she also was an employee of the
hospital. Our review of the record reveals nothing which would
cause us to believe that she could have been questioned more
effectively had the trial court permitted the hospital to use
leading questions during its direct examination of her.
McCance was generally cooperative when answering the questions
asked by the hospital's counsel. Further, the trial court
indicated that it would reconsider its ruling regarding the
right to cross-examine upon the establishment of hostility by
the hospital. The hospital did not request reconsideration nor
did it demonstrate hostility on the part of McCance. Moreover,
as the court of appeals noted, the hospital had ample
opportunity to impeach McCance. In fact, the hospital was able
to elicit McCance's admission that her trial testimony
regarding the care and treatment given Ashley by the emergency
room nurses differed from the testimony given at her
deposition. Thus, we find no abuse of discretion on the part
of the trial court with regard to its refusal to allow McCance
to be questioned by the hospital in a leading manner. In the
absence of an abuse of discretion, the trial court's ruling
must stand.

Accordingly, for the foregoing reasons, the judgment of
the court of appeals is affirmed with regard to COES and Dr.
Coles, and reversed and remanded to the trial court for a new
trial at the option of Ramage with regard to the liability, if
any, of the hospital. If Ramage chooses not to proceed
further, then COES and Dr. Coles could proceed in accordance
with the procedures set forth in R.C. 2307.31 and, in
particular, R.C. 2307.31(G).
Judgment affirmed in part,
reversed in part
and cause remanded.
Sweeney, Holmes, Wright and H. Brown, JJ., concur.
Douglas and Resnick, JJ., concur in part and dissent in
part.
Alice Robie Resnick, J., concurring in part and dissent-
ing in part. I concur with the majority's construction of R.C.
2125.02, and so concur with the second paragraph of the
syllabus. However, I agree with the court of appeals that
there was no need for the jury to hear expert testimony on the
standard of care required of the nurses in the circumstances of
this case. For that reason, I would not remand this cause to
the trial court, but would affirm the judgment of the court of
appeals in toto.
Although I accept the statement of law contained in para-
graph one of the syllabus in the abstract, that law has no
application to the specific facts of this case; therefore, I
dissent in part. Paragraph one of the syllabus begins by
stating: "In a negligence action involving the professional
skill and judgment of a nurse ***." The problem with the
majority's approach is that the professional skill and judgment
of a nurse are not really at issue in this case.
The trial court did not require Ramage to present expert
testimony to explain the nurses' actions. On appeal, the court
of appeals held that "plaintiff Ramage was not bound to present
expert opinion on routine nursing care, i.e., simple observation
of a patient." The appellate court then specifically cited
Jones v. Hawkes Hosp. of Mt. Carmel (1964), 175 Ohio St. 503,
26 O.O.2d 170, 196 N.E.2d 592. The majority, however, chooses
to distinguish Jones, as well as Burks v. Christ Hosp. (1969),
19 Ohio St.2d 128, 48 O.O.2d 117, 249 N.E.2d 829, and finds
that the "common knowledge exception" does not apply.
The majority states that what is really at issue is "the
professional skill and judgment of the nurses -- matters not
within the common knowledge and experience of the jurors."
However, the principal thrust of Ramage's argument at trial in
this regard was that the nurses were negligent in reporting
their observations of Ashley Ramage's vomiting and seizures.
Surely, questions going to whether those observations were
adequately relayed to the treating physician do not involve
subjects beyond the comprehension of ordinary jurors. Those
are questions readily resolved without the presentation of
expert testimony.
I fundamentally disagree with the majority's
interpretation of the facts of this case, and I would find
Jones and Burks controlling. While many situations conceivably
may arise requiring that expert testimony be presented to
establish the negligence of a nurse, this is not one of those

situations.
Douglas, J., concurs in the foregoing opinion.