Reasons for judgement were published this month in New York clearing the path for a medical malpractice claim against a ringside physician to proceed to trial.
In 2013 boxer Magomed Abdusalamov lost a unanimous decision to Mike Perez which took place at the Theater at Madison Square Garden. Abdusalamov suffered a brain bleed in the contest and went on to have severe permanent deficit from this injury. In 2017 the State of New York agreed to a settlement of $22 million on the basis that the New York State Athletic Commission, the regulator for the bout, provided inadequate post bout care likely causing/compounding the fighter’s injuries which included permanent partial paralysis and cognitive deficit.
Abdusalamov also sued the ringside physicians who were not covered by the settlement as they were engaged as independent contractors, not State employees, at the time. Defendant Gerard Varlotta attempted to have the suit dismissed via summary judgement but ultimately did not succeed clearing the path for the medical negligence claim to proceed to trial. In finding there is sufficient, albeit competing, medical evidence on whether the standard of care was met Judge Silber provided the following reasons:
Dr. Eichberg explains that the diagnosis and medical management of a suspected head and/or brain injury in combat sports, such as boxing, is more stringent than in non-combat sports, where contact is usually inadvertent. (Eichberg ¶ 45). While a boxing match puts a boxer at a risk of head trauma, he acknowledges that not all ringside physicians agree with him that after every boxing match the boxers should be sent to an emergency room for a CT scan. However, Dr. Eichberg does maintain “there can be no debate that when over three-hundred head blows [are inflicted] in the span of thirty-nine minutes, by a heavyweight opponent, hospitalization is indicated and warranted” (Eichberg ¶ 56).
As defendant’s expert, Dr. Michael B. Schwartz, disagrees with Dr. Eichberg’s opinions in a number of key respects (Schwartz ¶ 29-33), this clearly is a battle of the experts and raises issues of fact. It is not the court’s role on a summary judgment motion to determine a question of fact. Similarly, there is also a dispute between the experts with regard to whether the doctors’ observations of the fight and of Abdusalamov’s appearance after the fight should have led them to suspect that he had sustained a brain injury or a brain bleed which required Abdusalamov to be sent to the emergency room in the waiting and ready ambulance. (Eichberg ¶ 29; Schwartz ¶ 28). Likewise, the significance of a possible nasal injury, or a cheek bone fracture, or of the Notice of Suspension, which suspended Abdusalamov from boxing for 60 days, which was issued by defendant Dr. Jordan with “Head Trauma or Facial Injury” checked off, on the issue of the need for emergency medical treatment, are analyzed differently by each of the experts, who come to different conclusions (Eichberg ¶ 37-38, 57; Schwartz ¶ 35 n4, 36, Sparr ¶ 23).
Indeed, upon further review of the record, the court finds that Dr. Eichberg’s opinion is not wholly conclusory and speculative, but is supported by an extensive discussion of its factual basis and the boxer’s medical records which he lists as having been reviewed by him for his report. It is not the court’s role on a summary judgment motion to assess the merits of his opinions as compared to those of defendant’s expert (see Dandrea v Hertz, 23 AD3d 332, 333 [2d Dept 2005] [“Summary judgment may not be awarded in a medical malpractice action where the parties offer conflicting expert opinions, which present a credibility question requiring a jury’s resolution. Moreover, contrary to the defendants’ contentions, the opinions of the plaintiff’s expert were based upon facts in evidence, and were not conclusory or otherwise insufficient” (internal citations omitted)]; cf. Ortiz v Wyckoff Heights Med. Ctr., 149 AD3d 1093, 1095 [2d Dept 2017] [“plaintiffs failed to raise a triable issue of fact, as their expert’s opinion that additional medical testing should have been undertaken was conclusory, speculative, and based largely on hindsight reasoning”]).
On the issue of causation, plaintiff’s experts contend that if Abdusalamov had been sent immediately to the hospital, when the symptoms of brain injury did manifest, he would have received more prompt treatment which would have given him a better outcome than that which resulted from his walking into the ER after arriving in a taxi. (Silberman ¶ 11, Eichberg ¶ 17). Again, as defendant’s expert Dr. Sparr disagrees with this conclusion (Sparr ¶ 20, 23), this too raises an issue of fact. It is less clear that had plaintiff simply been held for further observation at Madison Square Garden and then sent by ambulance to the emergency room once the symptoms of brain injury first appeared, rather than in a taxi, that more prompt treatment would have been administered (Sparr ¶ 22). Nevertheless, this issue still involves a question of fact to be determined by the finder of the facts….
Accordingly, it is
ORDERED that the branch of the plaintiff’s motion seeking reargument is granted, and upon reargument, defendant Gerard P. Varlotta, D.O.’s cross motion for summary judgment dismissing the complaint and any cross-claims against him is denied, and it is further
ORDERED that the branch of the plaintiff’s motion seeking leave to renew is denied.
This shall constitute the decision and order of the court.