Scottland v Duva Boxing, LLC
2005 NY Slip Op 30494(U)
October 11, 2005
Sup Ct, NY County
Docket Number: 109179/04
Judge: Sherry Klein Heitler
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- NEW YORK COUNTY
SUPREME COURT OF THE STATE OF NEW
PART
/
0 109179/2004
-
Justice
I
IDEX NO.
SCOTTLAND, DENISE
OTION DATE
VS
.
'
30
DUVA BOXING, LLC
z
OTION SEQ. NO.
SEQ 2
OTION CAL. NO.
F
I
- DISMISS
ltlon to/foi
Notice of Motion/ Order to Show Cause - Affidavits
- Exhlblts ..,:
/
I
PAPEq8 NUMBERED
d
Answering Affldavlts - Exhibits
I
Replying Affidavits
0 Yes
Cross-Motion:
0 No
Upon the foregoing papere, it la ordered that thla motion
is decided in accordance with tbe
memorandum decision dated .
0ld-1'$1,w f
1
Dated:
t U H Y/
RLPIN HEITLER
0 FINAL DISPOSITION H
Check if appropriate:
0 DONOTPOST
Check one:
*
N
J-s-c.
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SUPREME COURT OF THE STATE OF NEW YORK
IAS PART 30
COUNTY OF NEW YORK:
X
DENISE SCOTTLAND, individually and as
Administratrix of the Estate of BEETHAVEAN
SCOTTLAND, Deceased,
_________-“_r_______11_1_______________1------------------------------
Index No. 109179/04
Plaintiff,
DECISION & ORDER
-against-
DUVA BOXING, LLC, LOU DUVA, ARTHUR
MERCANTE, JR., RUFUS SADLER, GERARD
VARLOTTA and BARRY JORDAN,
>
i
!
Motion sequence numbers 002 and 003 are consolidated herein for disposition.
On June 26,2001, a light-heavyweight boxing match between Beethavean Scottland
(“Scottland”) and George Khalid Jones (“Jones”) was held aboard the U.S.S. Intrepid in New
York City. Jones knocked Scottland out in the tenth and final round of the right, and Scottland
fell into a coma from which he never recovered. He died six days later at Bellevue Hospital.
Plaintiff Denise Scottland, both individually and as Administratrix of Scottland’s estate,
commenced this action on June 2 1,2004, by filing a Summons and Complaint with the New
York County Clerk.
In motion sequence 002, defendant Gerard Varlotta (L‘Varlotta”), a physician, moves,
pursuant to C.P.L.R. $321 1(a)(5), to dismiss plaintiffs complaint as against him on the ground
that the allegations sound in medical malpractice, a claim for which the Statute of Limitations
had already expired by the time plaintiff commenced this law suit. In motion sequence 003,
defendant Rufus Sadler (“Sadler”), also a doctor, moves to dismiss plaintiffs complaint as
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against him, on the same ground and for the same reason as Varlotta.
At issue in both of these motions is whether the allegations against defendants Sadler and
Varlotta contained in the complaint necessarily sound in medical malpractice. If they do,
plaintiff concedes, then these claims are time-barred because plaintiff did not file this complaint
within two-and-a-half years of the date the claims accrued.
See C.P.L.R. § 214-a. Both Varlotta
and Sadler’ are New York State licensed physicians. Both contend that they were present at the
Scottland - Jones fight in their medical capacity and, therefore, plaintiffs allegations against
them constitute medical malpractice claims.
Plaintiff argues that defendants were present at the fight not in their capacity as doctors,
but as ringside observers who, like the referee, shared a common law duty to Scottland to
exercise reasonable care in determining whether to stop the fight at some point prior to the
knockout. Additionally, plaintiff contends that there was no physician-patient relationship
between Scottland and defendants and, therefore, a medical malpractice claim against these
defendants would not lie. If, as plaintiff asserts, these allegations may properly be regarded as
sounding in common law negligence and not medical malpractice, then plaintiff has not violated
the accompanying three-year Statute of Limitations and the claims may survive these motions.
See C.P.L.R. 5 214(6).
The sport of boxing is closely regulated in New York. The New York State Legislature
“has specifically stated that because of the hazards inherent in the sports of boxing and wrestling,
‘it is in the public interest to extend the jurisdiction of the state’ into the regulation of those
’ Plaintiff has voluntarily withdrawn, with prejudice, her claim against Dr. Barry Jordan,
by so-ordered stipulation dated June 2,2005.
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activities (see L. 1988, ch 426, $ 1, reprinted following McKinney’s Uncons. Laws of N.Y.
8 S901).”
American Boxing & Atldetic Assn. v. Chemung Countv YMCA, 13 A.D.3d 842, 844
(3rdDept. 2004). Due to the “risk to public health and safety” posed by unsupervised or
insufficiently supervised boxing matches, all boxing matches in New York, with very few
exceptions2, are subject to the supervision of the New York State Athletic Cornmission (“the
Commission”). JjJ. at 843. See also 19 N.Y.C.R.R. 8 206.2; Ouartey v. AB $tars Productions,
260 A.D.2d 39, 43 (lstDept. 1999).
In keeping with the Legislature’s safety concerns, N.Y. Unconsol. Ch. 7, 8 26(1 j requires
“every person or corporation licensed to conduct a boxing or sparring match or exhibition, to
have in attendance . . . at least one physician designated by the commission as the rules provide.”
Additionally, there must be “two physicians in attendance at ringside, unless otherwise directed
or authorized by the cornmis~ion.~’ N.Y.C.R.R. 8 21 1.3. The duties of a ringside physician
19
are delineated as follows:
The ringside physician may terminate any contest or exhibition at any time
if in the opinion of such physician the health or well-being of any participant
would be significantly jeopardized by continuation of the context or exhibition. In
the event of any serious physical injury, such physician shall immediately render
any emergency treatment necessary, recommend further treatment or
hospitalization if required, and fully report the entire matter to the commission
within 24 hours, and thereafter, as required by the commission. Such physician
may also require that the injured participant and his or her manager remain in the
ring or on the premises or report to a hospital after the contest for such period of
time as such physician deems advisable.
The exceptions are boxing contests in which contestants are active militia in the New
York State national guard or naval militia, or “amateurs, sponsored by or under the supervision
of any university, college, school or other institution of learning, recognized by the regents of the
state of New York”, or “amateurs sponsored by or under the supervision of the U.S. Amateur
Boxing Federation or its local affiliates or the American Olympic Association.” N.Y.
Uncons.
Ch. 7 53 1.
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19 N.Y.C.R.R. $213.6. See also N.Y. Unconsol. Ch.7 §26(2). In order to facilitate the ringside
physician’s performance of these duties, the physician is permitted to enter the ring at any time in
order to examine the contestants.
N.Y.
Unconsol. Ch.7 $26(3); 19 N.Y.C.R.R. $213.7.
Although both the referee and the ringside physician are independently empowered to
terminate a boxing match, see supra, 19 N.Y.C.R.R. $ 21 3.6 (Duties of ringside physician) &
$21 1.6 (Referee’s powers and duties), the referee is directed to seek the “advice of the attending
physician” if a contestant has been injured. See 19 N.Y .C.R.R. 5 21 1.6. The physician,
however, is not directed to seek the advice of the referee or other personnel when deciding
whether to terminate a match.
Similarly, both the referee and the ringside physician are required to “attend such
neurological training seminars as specified and approved by the cornmission after consultation
with the medical advisory board,” 19 N.Y.C.R.R. 4 213.13, and the medical advisory board
provides training to all commission personnel to assist in their recognition of “adverse medical
indications in a participant prior to or during the course of a match”; however, the physician
alone will be tested as to his “comprehension of the medica1 literature on boxing,” N.Y.
Unconsol. Ch. 7 § 4.
In sum, the court’s review of the applicable regulations leads it to conclude that the
Legislature’s primary purpose in requiring the presence of ringside physicians, in addition to the
referee and other personnel, is to ensure the safety of the match participants. In this regard, this
case falls outside the rubric of those cited by plaintiff for the proposition that no physicianpatient relationship existed between Scottland and defendants.
For example, in Lee v, Citv of New York, 162 A.D.2d 34 (2ndDept. 1990), the Appellate
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Division held that a physician who was hired by a fire department to certify the fitness of its
firefighters for duty could not be held liable for failure to diagnose the decedent firefighter's
heart condition:
[A] claim for medical malpractice must be founded upon the existence of a
physician-patient relationship. Where, as here, the physician is employed or
retained by a third party to conduct an examination for the benefit of the third
party, there must be something more than a mere examination in order to find
a physician-patient relationship. . . , There must be some showing that the
physician affirmatively treated the patient or affirmatively advised the plaintiff
as to a course of treatment.
- at 37 (emphasis supplied). In so holding, the court in
Id.
was careful to distinguish its fact
pattern from that in Bradley v. St. Charles Hospital, 140 A.D.2d 403 (2ndDept. 1988):
The physician-patient relationship does not exist if the physician is
Murphy v
retained solely to examine an employee on behalf of an employer (see,
Blem, 160 AD2d 914). An exception applies, however, when the physician
affirmatively treats or affirmatively advises the employee as to treatment and the
treatment actually causes further injury. Thus, a cause of action for malpractice
may result even where the physician-patient relationship rests upon an "implied"
contract (see,Hickey v Travelers Ins. Co., 158 AD2d 1 12).
***
Under the particular set of circumstances found in Bradlqv, this court held
that dismissal of the action was not warranted on the basis that there was no
physician-patient relationship. The record in Bradlev indicates that the deceased
had been an employee of the defendant St. Charles Hospital. The hospital annually
evaluated the health of its employees and over the years the plaintiff had been
given chest X rays as part of the examination. The chest X rays had apparently
been added to the deceased's physical examination after a tine test for tuberculosis
had come back positive. After several years, she died of cancer and her estate sued
the hospital on its failure to properly interpret the X rays. The failure of the
hospital to establish the nonexistence of a physician-patient relationship upon
these facts led to this court's affirmance of the denial of the hospital's motion for
summary judgment.
The facts in Bradlev (supra) clearly established that an ongoing
relationship existed between the deceased and the hospital and that she could have
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reasonably relied upon the results of her annual examination. The chest X rays
were added to the deceased‘s annual examination to meet her specific medical
situation, i.e., they were included in the annual examination only after the
deceased had tested positive on her tuberculin skin test. The deceased had every
reason to believe that the hospital was monitoring her condition, and that she
could rely upon it for a proper diagnosis of her condition.
- supra, 162 A.D.2d at 36-38 (emphasis supplied).
Lce,
The instant case is more analogous to Bradlev than to Lee,or Murphy v. Blum, 160
Dept. 1990), upon which plaintiff also relies. While boxing regulations require a
A.D.2d 914 (2“d
physical examination for certification of fitness to obtain a license to box, see 19 N.Y .C.R.R.
213.2(b), the regulations go further to impose a duty upon the ringside physician to moniter the
boxing participants’ physical condition throughout the match, to terminate the match if a
participants’ health is endangered and to render emergency medical treatment if necessary. As in
Bradley, the fact that ringside physicians also give standard examinations for fitness does not
preclude the existence of a doctor-patient relationship - and, hence, a malpractice claim - where
the physicians are alleged to have “failed to properly diagnose the
. . . condition
of the plaintiffs
decedent and to act thereon, thereby . . . eventually caus[ing] the decedent’s death.” Bradlev,
supra, 140 A.D.2d at 404.
Where, as here, New York State’s boxing regulations require the presence of ringside
physicians for the explicit purpose of monitoring the physical conditions of the boxing
participants and exercising their independent medical judgment to terminate a match and/or treat
the participants, it seems clear that “[a] physician’s duty in that situation is the same as it is in
any other situation - to practice in accordance with good and accepted standards of medical
care.” Classen v. Izquierdo, 137 Misc.2d 489,493 (S.Ct. N.Y. Cty. 1987) (emphasis supplied)
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(denying summary judgment to defendant ringside physicians on medical malpractice claim
alleging negligent failure to stop boxing match). To reason otherwise
calls for a doctor, who at the time is the sole master of the patient’s
fate, to discard his own medical knowledge and experience, to push
aside his own observations and to submerge his own conscience,
to defer to the judgment of someone else. This type of reasoning
opens the door to such tragic and foreseeable consequences that
we hold it to be negligence.
Rosensweig v. $tate of New York, 208 Misc. 1065, 1073 (N.Y.Ct. Claims 1955), rev’G on other
grounds, 5 A.D.2d 293 (3rdDept. 1958).
The court finds, therefore, that under the facts of this case, the physician defendants were
retained as ringside physicians in their capacity as physicians, and they were charged with the
duty to exercise reasonable medical care to provide an ongoing medical diagnosis of the boxing
participants’ physical condition throughout the match. This holding is consistent with the
boxer’s reasonable expectation that a ringside physician will call the match if necessary to protect
his or her well-being, as well as attend to any injuries the boxer sustains during the match.
Consequently, a physician-patient relationship was created, such that Scottland had a
right to rely upon the physicians’ proper diagnosis of his condition. See Lee, supra, 162 A.D.2d
at 38. In essence, then, plaintiff’s claims against defendants Varlotta and Sadler sound in
medical malpractice and have expired under the applicable Statute of Limitations. & C.P.L.R.
8 214-a.
Accordingly, it is hereby
ORDERED that defendant Gerard Varlotta’s motion to dismiss plaintiffs complaint in
its entirety as against Varlotta (motion sequence number 002) is granted; and it is further
ORDERED that defendant Rufus Sadler’s motion to dismiss plaintiffs complaint in its
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entirety as against Sadler (motion sequence number 003) is granted; and it is further
ORDERED that this action, as against defendants Varlotta and Sadler, is discontinued
and the action, as severed, shall proceed accordingly; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that counsel for the remaining parties shall appear for a conference on
November 9,2005, at Room 438,60 Centre Street, New York, New York 10007.
This shall constitute the decision and order of the court.
DATED: October/
/
,2005
,
'>
/
7
SHERRY KL
8
