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Queener v. DiCicco

Court of Appeals of Ohio, Second District

July 3, 2013

ALEXANDER QUEENER, et al. Plaintiff-Appellant
JOSEPH DICICCO, D.O., et al. Defendants-Appellees

Civil appeal from Common Pleas Court T.C. NO. 09CV9915

MICHAEL L. GAY, Atty. Reg. No. 0024579, Attorney for Plaintiff-Appellant

PATRICK K. ADKINSON, Atty. Reg. No. 0016980, Attorney for Defendants-Appellees



{¶ 1} Alexander Queener appeals from a judgment of the Montgomery 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 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, 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 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 ...

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