By Katherine Simone, ESQ
Prichard Colon, a Florida native who spent a large part of his youth living in Puerto Rico training and competing, became a professional fighter in 2012. He’d had a notable amateur career, winning 5 national championships, and was successful in his tenure as a professional.
On October 17, 2015, Colon was scheduled to fight Terrel Williams at the EagleBank Arena in Fairfax, Virginia. During the earlier rounds of the fight, Williams made contact with his glove and the back of Colon’s head. Colon made a motion to indicate that he had been hit in the back of the head but he continued to fight. Colon came back and hit Williams with a low blow that resulted in Williams falling to the ground. The referee was forced to briefly stop the fight and bring both fighters to the center of the ring where he deducted two points from Colon for his hit. Additionally, he instructed both fighters to cease the illegal hits. When the fight resumed, Williams again hit Colon in the back of the head, this time knocking him to the ground. Colon was slow to get up. While getting to his feet, he kept one gloved hand on the back of his head. The referee, Joe Cooper, instructed Colon to take a few minutes to recover.
At this point, it appeared that Cooper summoned Dr. Richard Ashby, the designated ringside physician, to address Colon. Colon walked to the side of the ring, still keeping one gloved hand on the back of his head. Dr. Ashby put his hands on either side of Colon’s head, presumably assessing Colon’s speech and vision. Colon allegedly told Dr. Ashby that he was dizzy and that the back of his head hurt but that he thought he could continue the fight. Dr. Ashby allowed the fight to resume. Colon fought for two more rounds without requesting any further medical attention. The bout eventually ended when Colon was disqualified for removing his equipment before the match was over and Williams was declared the winner.
On the way to the locker room, Colon was walking with his mother, putting his arm around her for support. According to his mother, his legs were shaky and he complained of being dizzy and unable to see well. Once in the locker room, Colon vomited and collapsed. He was rushed to the hospital where he was diagnosed with a large left-sided subdural hematoma. He underwent an emergency hemicraniectomy.
While Colon survived the surgery, he remains in a persistent vegetative state where he will require around the clock care for the rest of his life. On May 3, 2017, Ari Casper of The Casper Firm filed a complaint naming Dr. Ashby, Family Practice Medical Services, P.C. (Dr. Ashby’s medical practice), Headbanger’s Promotions, Inc., and DiBella Entertainment, Inc. as defendants. The complaint alleges negligence against Dr. Ashby, the promotion company, and the entertainment company. Specifically, that Dr. Ashby had a doctor-patient relationship that mandated use of the applicable standard of care and that he deviated from that standard of care by allowing Colon to continue to fight after his complaints of pain and dizziness rather than getting him immediate medical attention. The complaint alleges that the event promoters owed Colon a reasonable standard of care which was breached by both a failure to put into place a brain injury protocol and failure to hire qualified staff. Additionally, the complaint alleges a conflict of interest of Dr. Ashby, who, at the time, was also a licensed boxing promoter.
Negligence Count Against Dr. Ashby
The issue here is whether or not Dr. Ashby should have taken Colon out of the fight after the seventh round and sent him to the hospital to be examined further and if, by not doing so, he breached the standard of care. The Department of Professional and Occupation Regulation[3] (DPOR) Official Investigation addresses the duties of ringside physicians and provides some insight into the standard of care while evaluating a boxer during a bout:
“While the specifics of this evaluation are not delineated in the regulations, commonly known practices of this examination include an evaluation of visible and non-visible injuries along with assessments and determinations of whether the boxer is coherent, capable of boxing in a competitive manner, and able to protect himself. Evaluations also include dialogue between the boxer and physician. In most all cases, this is to help determine if the boxer wishes to continue with the contest and also aids the physician in determining the boxer’s condition, generally[4].”
Additionally, the DPOR puts the general standard of care in the hands of the ringside physician. In it’s official investigation, it stated, “The methods that a licensed physician uses to conduct the evaluation and make a determination are the sole responsibility of the physician and are presumed to be in accordance with established standards of care/practice for medical doctors.”
Colon’s headache and dizziness may have been indicative of bleeding in the brain but they are also common side effects of boxing or any sport where there is direct contact with the head. The footage of the fight shows Dr. Ashby interacting with Colon and at one point he appears to be looking into his eyes. Assuming Colon was coherent, able to look at Dr. Ashby, and able to communicate with him, without some kind of symptom that separates being roughed up and having a debilitating internal injury, how was Dr. Ashby to know that something more serious was going on?
There are some medical professionals who think Dr. Ashby should have stopped the bout after the seventh round. ESPN featured a 2014 statement from former longtime Nevada ringside physician Margaret Goodman in which she stated: “Obviously, if a fighter ever told you they had a headache, they’ve got to go to the hospital right away. That’s the hallmark of a head injury…until proven otherwise, it’s a serious head injury.” Likewise, Dr. John Stiller, Chief Physician of the Maryland State Athletic Commission, told ESPN’s Outside the Lines that the “fight should have been stopped at that moment [referring to the seventh round illegal blow] and I still cannot think of a medically sound reason it wasn’t.” However, with no set brain injury protocol and no black letter standard of care, Colon’s condition at the moment of the initial evaluation didn’t necessarily give Dr. Ashby a reason to end the bout and send the boxer to the hospital.
Negligence Count Against the Promoters
The complaint alleges two points of negligence on the part of the promoters. First, they failed to hire a qualified ringside physician. According to the complaint, “The event promoters owed Colon a duty of care to hire, appoint, choose, recruit and approve personnel who would enforce, instruct, advise, and abide by the applicable standards of care.” Furthermore, the event promoters had a duty to ensure that the specific ringside physician was properly “trained, experienced, competent, qualified, unbiased, and skilled to perform the neurological examinations necessary to determine if one of the fighters had suffered a traumatic brain injury.” The Association of Ringside Physicians sets forth the parameters to become a certified ringside physician, none of which are disputed in The Casper Firm’s complaint. According to these parameters, Dr. Ashby was a qualified ringside physician.
Second, the complaint alleges that the Promoters were negligent in failing to put in place a brain injury protocol for the event. An ESPN article, Parents of ex-boxer Prichard Colon seek more than $50 million in lawsuit, stated that “Boxing, which has no national governing body, does not have an industry-wide traumatic brain injury protocol.” The promoters in this specific bout were regulated by the state of Virginia and, more specifically, by the DPOR. In this case, there is no boxing brain injury protocol established by the DPOR. However, the complaint sets forth that the responsibility to establish that protocol was that of the event promoters. “Had the event promoters provided Dr. Ashby with a brain injury protocol to follow…the bout would have ended [after the seventh round].” The complaint further argues that, given that a traumatic brain injury is foreseeable in a boxing match, the event promoters owed Colon a duty of care to ensure that adequate guidelines, procedures, and protocols were in place to identify neurological signs and symptoms of a brain bleed and to facilitate treatment of such an injury.
Dr. Ashby’s Conflict of Interest
The complaint’s final allegation is that Dr. Ashby had a conflict of interest as the ringside physician since he was also a licensed fight promoter. According to the complaint, this was in conflict with his duties created under the doctor-patient relationship. A fight promoter is the individual who funds the entire event and, as is self-explanatory within his or her title, promotes the match. They fund everything from the cups out of which the spectators drink to the EMTs waiting outside of the arena at the ready. They take large financial risks with the potential of making a large financial reward. Fight promoters can and do end up at odds with boxers since the boxers want to be paid the maximum amount of money possible for stepping into the ring but the more they make, the less goes back into the promoter’s pocket at the end of the day.
However, outside of an event that a promoter is personally funding, he or she has no immediate vested interest. Dr. Ashby was hired by the event promoters to be the ringside physician, not an additional promoter. As a licensed fight promoter, he had no financial interest in the outcome of the fight.
The case is set for an initial scheduling conference on August 4, 2017.
[3] Virginia’s governing body over professional boxing.
[4] 18VAC120-40-220
Katherine Simone is a lawyer licensed in the state of Ohio. She earned her J.D. from Northern Kentucky University and currently works for a Creditor’s Right firm in Norwood, Ohio. katasimone@gmail.com
