From the annals of sports Litigation Alert:
By Eric Chang and Dylan F. Henry, of Montgomery McCracken walker & Rhoads LLP
Round 1- The Facts
On November 2, 2013, heavyweight boxer, Magomed Abdusalamov, stepped into the ring at Madison Square garden and squared off against challenger, Ismaikel Perez, to defend his USNBC Heavyweight Title in a fight regulated by the new York state athletic commission (SAC). When the dust settled after 10 rounds of punishing blows, Abdusalamov was heavyweight champ no more; Perez won by unanimous decision. but this loss would soon be the least of Abdusalamov’s concerns.
SAC physicians, including Gerard P. Varlotta, D.O., examined Abdusalamov’s bloodied and swollen face in the locker room after the bout. The physicians stitched a laceration above his eye and suspected that Abdusalamov had sustained a nasal fracture. However, the physicians noted that Abduslamov did not manifest any neurological issues and saw no symptoms suggesting brain trauma, a brain bleed, or a subdural hematoma. They administered the King-Devick Camiseta CF Monterrey (KD) test, which helps physicians quickly recognize possible concussion symptoms. Abduslamov passed both before and after the bout. though there were ambulance on-site, the physicians did not send Abdusalamov to the hospital. Rather, they cleared him to leave the garden and only advised him to get an x-ray once he returned home to Florida.
Shortly after leaving the garden that night, Abdusalamov became increasingly unsteady and nauseous and began to manifest signs of neurological distress. Abdusalamov was rushed to Roosevelt hospital by taxi where he was diagnosed with a subdural hematoma and cerebral herniation. Soon, Abdusalamov underwent emergency brain surgery, suffered multiple strokes, and was placed in a medically‑induced coma. With the exception of a brief moment to remove his respirator, Abdusalamov remained in a coma for over a month. When he was eventually discharged from the hospital, Abdusalamov was paralyzed on his right side, unable to walk, and his speech was mostly limited to mumbling.
Round 2— The lawsuit and Partial Settlement
In January 2014, Abdusalamov and his family sued the state of new York, the SAC, the three SAC ringside physicians, and the referee. Plaintiffs alleged that defendants failed to provide adequate medical and neurological examination and evaluation to determine Abdusalamov’s physical and neurological condition during and after the fight, and that the defendants further failed to recognize, diagnose, or appreciate the significance of the blood found in “Abdusalamov’s urine, along with signs, symptoms and complaints of progressive nausea, vomiting, headache, malaise, facial fracture(s), hand fractures, disorientation, compromised coordination, alteration of speech pattern, lethargy and vertigo indicative of a closed traumatic brain injury.” The allegations also claimed the defendants “failed to provide timely and appropriate medical transport via ambulance to a nearby qualified hospital facility[.]” In 2017, the state of new York and the SAC agreed to pay $22 million in settlement. The medical malpractice suit against the ringside physicians and the referee remained.
Rounds 3 and 4—Summary Judgment, and summary Judgment Redux
Prior to trial, the ringside physicians moved for summary judgment. The defendants argued that Abdusalamov showed no signs of neurological distress during the fight or during the post‑bout medical examination and further claimed they did not deviate from the applicable standard of care because there was no cause for sending Abdusalamov immediately to the hospital emergency room. The court agreed and initially granted summary judgment with respect to Dr. Varlotta.
Plaintiff requested reargument, and the court changed its mind after reconsideration. Plaintiff pointed out that the court had overlooked plaintiff’s expert who opined that, even in the absence of overt signs of neurological distress, Abdusalamov should have been held for further observation or immediately transferred to a hospital for a CT scan of his brain. Plaintiff contended that the competing expert opinions, i.e., a “battle of the experts,” should have led the court to deny the motion for summary judgment and send the case to trial.
The Camiseta Bologna FC 1909 court again concluded that plaintiff did not offer competent expert evidence that Dr. Varlotta missed signs of neurological distress. The court recognized that defendants’ experts opined that (1) Camiseta ACF Fiorentina Dr. Varlotta did not deviate from the accepted standards of care because Abdusalamov “showed no signs of neurological distress during or after the bout or during Varlotta’s examination, so that Dr. Varlotta could not have reasonably anticipated that Abdusalamov would develop signs and symptoms of neurological distress later on”[1]; (2) that Abdusalamov did nnull