A New York State Supreme Court judge has reconsidered her earlier ruling and will allow a medical malpractice action brought by a professional boxer and his family against a ringside physician to go forward.
The underlying claim of boxer Magomed Abdusalamov was that defendant Gerard P. Varlotta failed to properly recognize that he had suffered a traumatic brain injury during the actual fight or when he examined him after the contest. Specifically, the plaintiff pointed to defendant Vartotta’s “deviation or departure from the standard of care of a ringside physician, including his failing to act when he should have, and in not adequately responding to the indications of head trauma.”
The court initially found that Varlotta had made a prima facie showing that Abdusalamov showed no signs of neurological distress during the boxing match, or during his post-bout medical examination, which would have warranted sending Abdusalamov to the hospital emergency room.
Besides challenging the aforementioned finding, the plaintiff also claimed the court didn’t properly acknowledge the plaintiff’s expert’s opinion that Abdusalamov should have been held for further observation after the bout or immediately rushed to a hospital for a CT scan of his brain.
The defendant countered, among other things, that the motion is just a “rehash” of the plaintiff’s prior arguments which were rejected in the court’s prior decision. “Further, the defendant contends there is simply no evidence in the record that Varlotta had clear indications that plaintiff had sustained a head trauma which defendant failed to recognize and which required either immediate treatment or further observation,” according to the court.
In its analysis on appeal, the court noted that a defendant in a medical malpractice case “has the initial burden of establishing the absence of any departure or deviation from good and accepted standards of medical care, or the absence of causation, that is, that the plaintiff was not injured thereby (see Bongiovanni v Cavagnuolo, 138 AD3d 12, 16, 24 N.Y.S.3d 689 [2d Dept 2016]).”
The plaintiff can then counter that position by raising a triable issue of fact with respect to the theory of non-liability that is the subject of the defendant’s argument. Pointedly, it zeroed in on “Dr. Varlotta’s interpretation of the King-Devick test results and Dr. Varlotta’s failure to interpret them as a failed test warranting immediate medical treatment.”
The instructions provided for the test, “which is for non-physicians, to determine when to remove an athlete from play, and to refer the athlete to a medical professional for a further evaluation to determine if he/she has had a concussion, cannot, without more, be read to strictly apply to a physician administering the test as part of a more comprehensive medical examination, or to establish the need for emergency treatment (see Wells v State, 228 AD2d 581, 644 N.Y.S.2d 526 [2d Dept 1996). In conclusion, plaintiff does not offer competent expert evidence that plaintiff demonstrated signs of neurological distress which Dr. Varlotta missed.
“Rather, Dr. Eichberg (the expert) opined that (even in the absence of any overt signs or symptoms of neurological distress prior to the completion of Dr. Varlotta’s examination) the defendant doctors departed from the standards of accepted medical care when they released Abdusalamov less than 30 minutes after the end of the match, with knowledge that he had sustained a head trauma, discussed further below, without either transferring him to a hospital or continuing to monitor him. Dr. Eichberg explained that it is not possible to clear a suspected head/brain injury patient within 30 minutes after a confirmed head trauma; that the ringside physicians should have transferred Abdusalamov to an emergency room in the ambulance, which was waiting outside the Garden, for immediate objective testing, such as a CT scan of his brain, or subjected him to ‘watchful waiting’ for an hour or more to assure he had no signs of neurological distress. Thus, Eichberg’s opinion that Dr. Varlotta departed from what would have been good and accepted medical care by a ringside physician rests largely on the fact that Abdusalamov had sustained a confirmed head trauma and not that Dr. Varlotta missed signs or symptoms of neurological distress. This raises the question as to the basis for Eichberg’s conclusion that Abdusalamov sustained a confirmed head trauma, in the absence of signs or symptoms of neurological distress.
“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. 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.’”
The defendant’s expert, Dr. Michael B. Schwartz, disagreed with Dr. Eichberg’s opinions in a number of key respects, making this “a battle of the experts.”
“It is not the court’s role on a summary judgment motion to determine a question of fact,” it wrote. “Similarly, there is also a dispute between the experts with regard to whether the co-defendant 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.
“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 the defendant’s expert.”
The court continued: “On the issue of causation, the 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. Again, as the defendant’s expert Dr. Sparr “disagrees with this conclusion, this too raises an issue of fact. It is less clear that had the 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. Nevertheless, this issue still involves a question of fact to be determined by the finder of the facts.”
Thomas et al. v Farrago et al.; Supreme Court of New York, Kings County; 2019 N.Y. Misc. LEXIS 598, 2019 NY Slip Op 30345(U); 2/14/19
