[Cite as Queener v. DiCicco, 2013-Ohio-2934.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

ALEXANDER QUEENER, et al.                               :

        Plaintiff-Appellant                             :             C.A. CASE NO.     25348

v.                                                      :             T.C. NO.     09CV9915

JOSEPH DICICCO, D.O., et al.                            :             (Civil appeal from
                                                                      Common Pleas Court)
        Defendants-Appellees                            :

                                                        :

                                                ..........

                                           OPINION

                        Rendered on the           3rd        day of         July      , 2013.

                                                ..........

MICHAEL L. GAY, Atty. Reg. No. 0024579, 537 East Pete Rose Way, Suite 400,
Cincinnati, Ohio 45202
       Attorney for Plaintiff-Appellant

PATRICK K. ADKINSON, Atty. Reg. No. 0016980, 4244 Indian Ripple Rd., Suite 150,
Dayton, Ohio 45440
      Attorney for Defendants-Appellees

                                                ..........

DONOVAN, J.

                {¶ 1} Alexander Queener appeals from a judgment of the Montgomery
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County Court of Common Pleas, which directed a verdict in favor of Dr. Joseph DiCicco

and Orthopedic Associates of Southwestern Ohio, Inc., on Queener’s claim for negligence.

For the following reasons, the judgment of the trial court will be affirmed.

         {¶ 2}         In 2006, Queener developed a benign tumor in his right lower leg, which

caused the two bones of the lower leg to become attached. The tumor was surgically

removed by a doctor in Cincinnati.                         In 2008, Queener suffered a recurrence of this

condition, and he sought treatment from the doctors at Orthopedic Associates, namely Drs.

Brian Ceccarelli and DiCicco. On June 11, 2008, Dr. DiCicco removed the new tumor.

         {¶ 3}         In the early morning hours of Sunday, June 15, while Queener was

recuperating at his mother’s home, he fell onto a coffee table, injuring his surgically-repaired

leg.1    He failed to seek medical attention. Later in the day, the pain in Queener’s leg

increased significantly.              After consulting with Dr. Ceccarelli, who was on call for

Orthopedic Associates, Queener went to Miami Valley Hospital,2 where he was diagnosed

as having a blood clot in his right leg. He was then transferred to Grandview Hospital,

where he was admitted for observation.

         {¶ 4}         In June of 2008, Dr. Micah Hobbs was a third-year resident at Grandview

Hospital and was working a three-month rotation with the doctors of Orthopedic Associates.

 Dr. Hobbs, along with other doctors from Orthopedic Associates and doctors in other

             1
           Queener recounted the manner of the injury to his mother at the time, but
   in his later testimony he stated that he had no recollection of how the injury
   occurred.
             2
               The doctors of Orthopedic Associates have privileges at Grandview Hospital but, recognizing that Grandview did not
   have the types of doctors on call on the weekends that might be necessary to evaluate Queener’s injury, he was initially instructed
   to go to Miami Valley Hospital.
                                                                                           3

specialties, including vascular specialists, monitored Queener’s condition during his stay at

Grandview. It is undisputed that Dr. Hobbs was employed by Grandview Hospital. Drs.

DiCicco and Ceccarelli had privileges at Grandview Hospital, but no evidence was adduced

that they were employed by the hospital.

       {¶ 5}       At the time of his admission, Queener’s “differential diagnosis” (meaning

a range of possible or suspected causes of the condition that was being evaluated) included a

condition know as “compartmental syndrome.” Thus, the doctors who were treating him

were watching for signs of this condition. According to several witnesses who testified at

trial, the lower leg includes four “compartments” defined by strong connective tissue. The

connective tissue cannot readily expand, so if pressure increases in any of the compartments

due to bleeding or swelling, the resulting build-up of pressure can cause severe tissue

damage; normal blood flow and tissue function are impaired by the pressure. Typical

symptoms of compartmental syndrome include firmness of the tissue and significant pain.

The development of compartmental syndrome requires treatment within several hours,

because of the swiftness with which tissues can be irreparably damaged.

       {¶ 6}     After his transfer to Grandview, an ultrasound examination showed that no

blood clot was present in Queener’s right leg, but a hematoma (a collection of blood under

the skin) was present. On Monday, June 16, Dr. Ceccarelli examined Queener at 1:00 p.m.

and saw no indications of compartmental syndrome.        Normally, another doctor from the

practice would have checked on Queener during rounds on Tuesday, but the record did not

contain any notes reflecting such a visit. Dr. Hobbs examined Queener on Monday and again

on Tuesday morning; like Dr. Ceccarelli, he saw no signs of compartmental syndrome,
                                                                                            4

noting that the tissue of the leg was “soft” and “compressible.” Queener was experiencing

some leg pain, but not to a degree that concerned Dr. Hobbs; it was not “out of proportion.”

Queener had no pain with passive movement of his toes. Dr. Hobbs reported his findings to

Dr.DiCicco.

       {¶ 7}      On Tuesday, Dr. Hobbs began to consider putting Queener on Dr.

DiCicco’s surgical schedule for removal of the hematoma, and, on Tuesday night, Dr. Hobbs

put Queener on Dr. DiCicco’s surgical schedule for Wednesday.              When Dr. Hobbs

examined Queener on Wednesday morning, Dr. Hobbs noted that the tissue of Queener’s

lower right leg was firm, but he did not consider this change to be significant. He testified

that “agonizing pain” generally accompanies compartmental syndrome, and Queener was not

in significant pain Wednesday morning (or at any other time during the week) and was able

to move around in his bed. Queener was taking pain medication during this time.

       {¶ 8}     When Dr. DiCicco performed surgery on Queener Wednesday afternoon,

June 17, he (Dr. DiCicco) discovered a significant amount of dead tissue in Queener’s lower

leg. Dr. DiCicco testified that the tissue looked like it had been dead for several days. Drs.

DiCicco and Hobbs believed that Queener had suffered compartmental syndrome prior to his

admission to Grandview Hospital, which had subsided by the time they first examined him.

The damage to and subsequent removal of tissue from Queener’s leg left him with a limp

and other physical limitations.

       {¶ 9}     In December 2009, Queener filed a complaint against DiCicco and

Orthopedic Associates (hereinafter, “Dr. DiCicco”) for negligence in failing to diagnose and
                                                                                                      5

properly treat his condition. 3             Dr. DiCicco maintained that Dr. Hobbs had not been

negligent and that, even if Dr. Hobbs had been negligent, he (Dr. DiCicco) was not liable for

the negligence.     The case went to trial in July and August 2012. After the jury was seated,

but before testimony began, Dr. DiCicco moved for a directed verdict on two bases: 1) there

was no evidence that Dr. DiCicco had deviated from the standard of care, and Dr. DiCicco

was not vicariously liable for an error, if any, made by the hospital’s resident, Dr. Hobbs,

and 2) due to the statute of limitations, Queener could no longer pursue a claim against Dr.

Hobbs and, if the statute of limitations prevents an action against the “agent,” it also

precludes an action against the “principal.”

       {¶ 10}      The court initially declined to rule on Dr. DiCicco’s motion for directed

verdict, but, after hearing the testimony of Queener’s witnesses, the court granted the

motion. The court found “no evidence that Dr. DiCicco exercised control over how Dr.

Hobbs examined, monitored, or tested Mr. Queener concerning compartment syndrome or

any other condition. * * * [T]here is simply insufficient evidence that Grandview Hospital

passed control of Dr. Hobbs’s conduct to Dr. DiCicco so that Dr. Hobbs became Dr.

DiCicco’s loaned servant. Therefore, Dr. DiCicco cannot be vicariously liable for Dr.

Hobbs’s negligence.”

       {¶ 11}      On appeal, Queener contends that the trial court erred in granting a directed

verdict and in concluding that Dr. DiCicco was not responsible for Dr. Hobbs’s negligence.

       {¶ 12}      In considering a motion for a directed verdict, a court must construe the

evidence most strongly in favor of the party against whom the motion is directed, and the

          3
           Queener did not file a claim against Dr. DiCicco for negligent supervision of Dr. Hobbs.
                                                                                            6

motion must be overruled unless reasonable minds could reach no other conclusion but that,

under the applicable law, the movant is entitled to judgment in his favor. Civ.R. 50; Texler

v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 1998-Ohio-602,

693 N.E.2d 271; Butler v. Stevens, 2d Dist. Montgomery No. 22822, 2009-Ohio-2775, ¶ 25.

A trial court’s decision on a motion for directed verdict presents a question of law, which an

appellate court reviews de novo. Strategy Group for Media, Inc. v. Lowden, 5th Dist.

Delaware No. 12 CAE 03 16, 2013-Ohio-1330, ¶ 43, citing Groob v. Keybank, 108 Ohio

St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14.          A directed verdict is appropriate

where a plaintiff fails to present evidence from which reasonable minds could find in the

plaintiff’s favor. Id.

        {¶ 13}   In reaching its decision that Dr. DiCicco could not be held vicariously

liable, the trial court relied on Baird v. Sickler, 69 Ohio St.2d 652, 433 N.E.2d 593 (1982)

and Ferguson v. Dyer, 149 Ohio App.3d 380, 2002-Ohio-1442, 777 N.E.2d 850 (10th Dist.).



        {¶ 14}   Baird involved surgery on a woman who, due to her physical condition,

including osteoarthritis of her spine, presented a difficult intubation for anesthetics. A

nurse-anesthetist, who was not an employee of the surgeon, performed the intubation under

specific instruction from, and with the assistance of, the surgeon, who recognized the

difficulties posed by the intubation of this particular patient. The Ohio Supreme Court held

that a directed verdict for the surgeon had been improper and that the surgeon might have

been liable under a theory of respondeat superior, because he controlled and participated in

the administration of the anesthetic. The court also allowed for the possibility that the
                                                                                              7

surgeon could have been held liable even if he had failed to exercise actual control over the

intubation, because, under the facts presented in that case, the surgeon clearly “had the right

to control it.” Id. at 654. The Supreme Court expressly declined, however, to “breath[e]

new life” into the “abjectly discredited ‘captain of the ship doctrine’ which held a chief

surgeon responsible for all that transpires in the operating room.” Id. at 655.

       {¶ 15}    Although the trial court discussed the Supreme Court’s holding in Baird, it

was cognizant that the holding, and particularly the sweeping language about a doctor’s

potential liability based on an unexercised “right to control” a hospital employee, has been

viewed with caution by other courts. In fact, at least one court has declined to apply the

court’s statement about liability based on the surgeon’s “right to control,” viewing it as

dicta. Ferguson at ¶ 23.      Ferguson rejected an appellant’s argument that the Supreme

Court “set forth a hard-and-fast rule that for purposes of the loaned-servant doctrine, mere

potential [to] control or right of control is sufficient to establish vicarious liability on the

part of the borrowing employer.” Id.

       {¶ 16}    In Ferguson, a doctor gave orders regarding the care and treatment of the

patient with the expectation that these orders would be generally adhered to by the hospital

staff in the doctor's absence; it was undisputed that a nurse negligently failed to notify the

doctor or the resident on duty of critical changes in the patient’s condition. The appellate

court found that, where the advisability and clinical judgment of the doctor’s standing orders

themselves were not called into question, there was an “insufficient basis upon which to

base liability on the part of a physician pursuant to the loaned-servant doctrine because of

subsequent negligence on the part of hospital employees in attending to the patient who is
                                                                                               8

the subject of those orders.” Id. at ¶ 24.

       {¶ 17} Ferguson further reasoned:

       {¶ 18} “[R]eading the Ohio Supreme Court's opinion in Baird in its entirety and

bearing in mind that the facts in that case in no manner required such an expansive

interpretation of the rule, we find that the ‘right-to-control’ test remains inapplicable in

Ohio. In reaching this conclusion, we note that, in Baird, the Supreme Court referred to the

‘abjectly discredited captain of the ship doctrine,’ and refused to ‘[breathe] new life into that

now prostrate doctrine. We make no attempt to impose upon an operating physician the duty

of overseeing all that occurs in the highly technical milieu in which he works. Instead, we

seek only to ensure that where, in the operating room, a surgeon does control or realistically

possesses the right to control events and procedures, he does so with a high degree of care.’”

 Id. at ¶ 23, citing Baird at 655.

       {¶ 19}     In sum, Ferguson held that the mere potential or possible control by a

doctor of a hospital employee is an insufficient basis to find liability on the part of a doctor

pursuant to the loaned-servant doctrine, and that the fact that a doctor could have exerted

influence or control over hospital employees in their care of a patient was not enough upon

which to base a finding of liability. Id. at ¶ 25.

       {¶ 20}     The trial court adopted the reasoning in Ferguson, and its narrow

interpretation of Baird, in granting a directed verdict in favor of Dr. DiCicco. Queener

presented no evidence that Dr. DiCicco had employed Dr. Hobbs or that he had directly

supervised or controlled Dr. Hobbs in his care of Queener.             At most, the evidence

established that, after examining Dr. DiCicco’s patients, Dr. Hobbs regularly reported his
                                                                                             9

findings to Dr. DiCicco, and, in consultation with Dr. DiCicco, Dr. Hobbs placed patients on

Dr. DiCicco’s surgical schedule. There is nothing in the record to suggest that Dr. DiCicco

was involved in Dr. Hobbs’s care of Queener at the hospital to the degree that was present in

Baird, where the surgeon, during a surgical procedure, specifically advised and assisted a

nurse-anaesthetist on the manner of intubating a patient, which intubation led to the patient’s

paralysis. Applying the standard set forth in Ferguson, the trial court concluded:

                An attending physician is not expected to be, nor can he be, at the

       hospital all day every day. Based upon that, the evaluation and care and

       testing and monitoring of a patient is generally left to employees of the

       hospital, be they nurses, residents, interns, fellows, whatever the case may be.

                And in this case, during the time period involved, again, from 5:30

       a.m. on Tuesday until 5:30 a.m. on Wednesday, it was the duty of the hospital

       employees to do the testing generally and the testing specifically for the

       compartment syndrome.

                Dr. DiCicco was not involved in that and, realistically, under the

       situation presented when a patient’s in the hospital, unless the doctor is

       specifically directing how certain things are to be done, he cannot be held

       responsible for a failure by a hospital employee, in this case, Dr. Hobbs, the

       resident, assuming there is such a failure.

       {¶ 21}    Based on the evidence presented in this case, the trial court properly

concluded that a directed verdict in favor of Dr. DiCicco was appropriate. Reasonable

minds could not have concluded that Dr. DiCicco employed Dr. Hobbs or controlled Dr.
                                                                                                 10

Hobbs’s care of Queener to such an extent that he could be held liable for Dr. Hobbs’s

alleged negligence.4

          {¶ 22}       Queener also relies on Lownsbury v. VanBuren, 94 Ohio St.3d 231,

2002-Ohio-646, 762 N.E.2d 354, for the proposition that an attending physician “who

contracts to provide resident supervision at a teaching hospital” is liable to the patients

treated by the residents, although no direct doctor-patient relationship may exist between the

attending physician and the patient. However, the supreme court’s decision in that case

relied heavily on the hospital’s contract with the supervising or attending physician, the

duties the attending had undertaken pursuant to that contract, and the lack of a “traditional”

or direct doctor-patient relationship between the attending physician and the patient in that

case.

          {¶ 23}       Of course, the existence of the doctor-patient relationship is not in dispute

in Queener’s case, as Dr. DiCicco had operated on Queener prior to his admission to the

hospital. Lownsbury and several of the cases upon which it relies involved attending

physicians who assumed a “duty of supervisory care” through “contractual and employment

arrangements with the hospital.” In Queener’s case, no evidence was presented regarding

the nature of DiCicco’s relationship with Grandview Hospital. In other words, it is unclear

whether he contracted with the hospital to supervise its residents or whether Dr. Hobbs’s

“rotation” with Drs. DiCicco and Ceccarelli arose out of another type of arrangement. As

Lownsbury itself observes: “the mere existence of an agreement [delegating the

responsibility of supervision] does not * * * end the inquiry of determining who has

  4
      We express no opinion as to whether Dr. Hobbs was, in fact, negligent.
                                                                                         11

responsibility for supervision.   As with the delegation of all duties, the terms of the

agreement between the delegator and the delegatee control. The delegatee will be charged

only with the duties that he has voluntarily assumed.” Id., citing Mozingo v. Pitt Cty. Mem.

Hosp., Inc., 331 N.C. 182, 415 S.E.2d 341 (1992).         It is undisputed that Dr. Hobbs

consulted with Dr. DiCicco regularly about the care of his patients, but because Queener’s

evidence did not address whether, or to what extent, Dr. DiCicco assumed a duty to

supervise Dr. Hobbs, Lownsbury is not instructive.

       {¶ 24}   The assignment of error is overruled.

       {¶ 25}   The judgment of the trial court will be affirmed.

                                        ..........

HALL, J., concurs.

FROELICH, J., dissenting:

       {¶ 26}   In my view, there is a factual question whether Dr. Hobbs was under the

control and direction of Dr. DiCicco when, during a rotation with Orthopedic Associates,

Dr. DiCicco entrusted him with the care of Queener, a hospitalized patient of the practice.

If this were a jury verdict, I would affirm; however, because I conclude that reasonable

minds could disagree on this point, I would hold that the trial court’s directed verdict for

DiCicco was improper.

       {¶ 27}   The trial court found that there was “not a sufficient basis to give the

loaned servant [jury] instruction,” Ohio Jury Instruction 417.09, regarding Dr. Hobbs’s acts

because there was “no evidence that Dr. DiCicco exercised control over how Dr. Hobbs

examined, monitored, or tested Mr. Queener concerning compartment syndrome or any
                                                                                        12

other condition.” The court recognized that Dr. DiCicco “was interested in the outcome”

and wanted Queener “to be properly monitored,” but concluded that Dr. DiCicco “had

absolutely no control” because he had not been at the hospital during the relevant periods.

The court stated: “[T]here is simply insufficient evidence that Grandview Hospital passed

control of Dr. Hobbs’s conduct to Dr. DiCicco so that Dr. Hobbs became Dr. DiCicco’s

loaned servant.    Therefore, Dr. DiCicco cannot be vicariously liable for Dr. Hobbs’s

negligence.”

       {¶ 28}     Queener’s mother, a nurse, respected Dr. DiCicco’s practice. Queener had

specifically sought out Drs. Ceccarelli and DiCicco to care for him, and Dr. DiCicco had

operated on Queener only a few days before Queener developed compartment syndrome.

Queener was transferred from Miami Valley Hospital to Grandview Hospital for the sole

reason that Drs. DiCicco and Ceccarelli practiced there. During the time that Queener was

at Grandview, Dr. Hobbs, a resident at Grandview, regularly consulted with Drs. DiCicco

and Ceccarelli about Queener’s condition, reporting his observations and conclusions. It

appears from the record that, during his time at Grandview Hospital, no one examined

Queener between Tuesday morning and Wednesday morning, although the testimony by

several doctors at trial established that compartment syndrome could occur and cause

significant damage within just a few hours. According to Dr. DiCicco’s testimony, if Dr.

Hobbs thought “something was awry” with one of his (Dr. DiCicco’s) patients, he (Dr.

Hobbs) would contact Dr. DiCicco.

       {¶ 29}     According to an expert who testified, Dr. Hobbs was “an extender of the

attending physician who is ultimately and completely responsible for the patient.” Dr.
                                                                                                 13

Hobbs consulted with Dr. DiCicco about his (Dr. Hobbs’s) opinion that Queener should be

put on Dr. DiCicco’s surgical schedule for Wednesday, June 19 (and obtained Dr. DiCicco’s

permission to make such an addition to the schedule).

        {¶ 30}    I do not disagree with the trial court’s observation, based on Ferguson, that

an attending physician “is not expected to be, nor can he be, at the hospital all day every

day.” Dr. DiCicco argues that Queener is trying to revive the “prostrate doctrine known as

‘captain of the ship.’” However, an attending physician can exert control and direction over

a resident without being physically present, by giving instructions, approving or

disapproving tests, overseeing the frequency and manner in which a patient is monitored,

and authorizing specific care.

        {¶ 31}    “Similes sometimes help explain a factual situation, but in legal writing,

phrases have a way of being canonized and of growing until they can stand and walk

independently of the usual general rules * * *.            ‘A phrase begins life as a literary

expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal

formula, undiscriminatingly used to express different and sometimes contradictory ideas.’”

Yungtum, The Captain of the Ship Sets Sail in Nebraska, 29 Creighton L.Rev. 379 (1995),

citing, Tiller v. Atlantic Coast Line RR Co., 318 U.S. 54, 68, 63 S.Ct. 444, 87 L.Ed. 610

(1943) (Frankfurter, J.).

        {¶ 32}    Thus it is with the use of the phrase “captain of the ship” in malpractice

cases, which apparently originated in the Pennsylvania Supreme Court.               McConnell v.

Williams, 361 Pa. 355, 65 A.2d 243 (1949) dealt with a surgeon’s selection of an “interne”

to assist him and care for a newborn in the operating room of a charitable hospital. The
                                                                                             14

court referenced “the personal liability of the captain of a vessel for negligent acts of the

subordinate officers and crew, whether or not appointed or employed by him.” Id. at 362,

fn.1. Queener’s brief does not mention the captain of the ship doctrine, I do not infer it

from his arguments, and the Ohio Supreme Court has expressly rejected the doctrine. See

Baird, 69 Ohio St.2d 652, 655, 433 N.E.2d 593.

       {¶ 33}    Each party to this appeal presents a parade of horribles. Dr. DiCicco

argues that if patients’ doctors are sometimes responsible for the negligence of hospital

residents, then patients’ doctors will never use residents to care for their hospitalized

patients and the treatment of patients at hospitals will suffer dramatically.          Queener

suggests that if patients’ doctors are never held responsible, patients’ care and treatment will

be routinely handled by residents without appropriate direction and control. Resolution of

the specific case before us does not require the use of hoary phrases and will not result in the

health-care meltdown envisioned by either party.

       {¶ 34}    I do not suggest that attending physicians are responsible for every action

undertaken by a resident. This is a fact-sensitive determination that must be made on a

case-by-case basis. In this case, the issue of control and direction was not sufficiently clear

to warrant a directed verdict for Dr. DiCicco. Regardless of how the jury would have

resolved the factual question, the court erred in removing that choice from it.

       {¶ 35}    I would reverse the judgment of the trial court and remand for further

proceedings. At that time, the trial court could address, among other matters, Dr. DiCicco’s

alternate argument in favor of a directed verdict, namely that the expiration of the statute of

limitations for a claim against Dr. Hobbs precluded a claim against Dr. DiCicco.
                                     15

                         .........

Copies mailed to:

Michael L. Gay
Patrick K. Adkinson
Hon. Michael L. Tucker
