Kevin Ferguson - aka Kimbo Slice - died on June 6th, 2016 from congestive heart failure. 108 days prior to his passing, on February 19th, Ferguson fought Dhafir Harris - aka Dada 5000 - in the co-main event of Bellator 149. That event was held at the Toyota Center in Houston, Texas.

During the contest, both competitors appeared exhausted within the opening round. At the 2:22 mark in the third, Harris fell to the canvas, succumbing to the stress on his body. This led to Ferguson being awarded a KO victory. The result would later be changed to a No Contest, due to Ferguson testing positive for the banned substance nandrolone and for his elevated Testosterone/Epitestosterone (T/E) ratio.

The end of that fight was followed by frightening scenes of medical professionals attending to a downed Harris. Shortly afterward, Harris was taken via stretcher to a waiting ambulance, and to a hospital where he was listed under critical condition. Harris spent three weeks in hospital before being released. On his release, Harris claimed that during the fight with Ferguson he suffered kidney failure and two heart attacks.

The Texas Department of Licensing and Regulation (TDLR), through its Combative Sports Advisory Board, is responsible for overseeing all aspects of combative sports in Texas. Individuals wishing to compete in a pro mixed-martial-arts bout in that state must be granted a Combative Sports Professional Contestant License by the TDLR. To receive a license applicants must submit a completed Form BOX001 (Professional Contestant Application), pay a $20 fee, and supply the requested medical information.

Below are the sections of Form BOX001 which a prospective fighter must have completed by a doctor who is licensed in a state, district, or territory of the United States.

PART 1 of this form states that any applicant over the age of 36 must also submit results of both an Electroencephalogram (EEG) and an Electrocardiogram (EKG). An EEG is a test that records brain wave patterns in order to detect abnormalities. An EKG, sometimes referred to as an ECG, is a test which measures the electrical activity of a heart to determine its overall health. At the time of their bout, Ferguson was 42-years-old and Harris was 38-years-old. Both were required to submit EEG and EKG test results to the TDLR.

On July 1st, 2016 I submitted a Public Information Act request to the TDLR, asking for the following:

Copies of the paperwork submitted by, or on the behalf of, Kevin Ferguson (born February 8th, 1974 and deceased June 6th, 2016) to the Texas Department of License and Regulations in connection to his participation as a mixed-martial-arts contestant at the event Bellator 149 which was held on February 19th, 2016 at the Toyota Center in Houston, Texas. Specifically, I would like a copy of the late Mr. Ferguson's completed Contestant Application form. In addition to this form, I would like a copy of the annual comprehensive medical exam and the report of favorable physical testing including an EEG (electroencephalography) and EKG (electrocardiogram) which Mr. Ferguson was required to submit, along with his contestant application.

The TDLR Open Records Team confirmed receipt of my request within hours.

On July 13th, the TDLR’s Open Records Coordinator responded to my request and stated the following, via email:

TDLR has filed a request with the Texas Attorney General’s Office for a ruling regarding the confidentiality of Mr. Ferguson’s medical records. TDLR asserts that the information found in Mr. Ferguson’s medical records are still confidential even after death, under the Texas Public Information Act. TDLR is requesting that the Attorney General make a ruling on TDLR’s claimed exceptions. A copy of the request to the Attorney General’s Office is attached.

The attached document revealed that, in response to numerous request for both Ferguson and Harris’ medical records, the TDLR had performed a search of their records and had “found documents that are responsive to the requests.”

Despite being able to locate the presumed medical records, including EEG and EKG test results, the TDLR appealed to Texas Attorney General Ken Paxton for a ruling that would block these records’ release to the public.

In their request to the Attorney General the TDLR argued that, “a portion of the responsive documents are exempt from disclosure under Govt. Code Section 552.101 “information considered confidential by law, either constitutional, statutory or by judicial decisions,” including information covered by the common-law right of privacy”.

The TDLR further argued that Ferguson and Harris’ medical records were “confidential, under multiple provisions of state law” and that the documents contained protected health information (PHI), as defined by the Texas Medical Records Privacy Act (MRPA).

The TDLR also reported to the Attorney General their belief that the Medical Practice Act (MPA), which governs the public availability of medical records, protects medical records not only in the hands of medical providers, by also third parties (such as the TDLR).

The TDLR’s letter to the Attorney General also stated that Ferguson’s death had no effect on the, “confidentiality of the medical records and the protections assigned to them” under the laws cited by the TDLR.

In their letter the TDLR did reveal that a condition of being granted a license to compete in combative sports is that an applicant waives their personal right of confidentiality of medical records, pertaining to any condition that relates to their ability to participate in a bout.

Furthermore, the TDLR revealed that Ferguson, Harris, and any other fighter licensed to fight in Texas had signed the following:

“I declare under penalty of perjury under the laws of the State of Texas that foregoing information is true and correct, further I realize that any intentional misrepresentation may result in disciplinary action against my license, I hereby AUTHORIZE the Texas Department of Licensing and Relation (Department), pursuant to the provisions of Texas Administrative Code, Chapter 61, § 61.47(s), to RELEASE any and all medical information and/or personal information with respect to my status and licensure as a contestant which may be contained in any of the Department’s records. I further authorize the Department to release this information to any person whom the Department determines has a need to know.”

So, the TDLR are not required to keep Ferguson or Harris’ medical records private out of respect to the privacy rights of either Ferguson or Harris - since both men have given the TDLR permission to release this information. The TDLR instead argued that they themselves have the right to keep Ferguson and Harris’ records private and confidential.

In their letter to the Attorney General the TDLR did concede that the public “Was entitled to know the result” of whether the TDLR determined an applicant fit to compete in combative sports, but that this did not extend to a right to view what they termed as “intimate medical information.”

“The public has no specific need to know a contestant’s personal medical information.” - Texas Department of Licensing and Regulation

However, the TDLR maintained that they could release this intimate medical information to parties which have a “need to know”. In their letter to the AG the TDLR listed those with a need to know as medical professionals, physicians, and administrative law judges. According to the TDLR, “The public has no specific need to know a contestant’s personal medical information.”

However, the TDLR also wrote that, “There is no law that permits the public release of this information.”

Prior to this, in June, Bloody Elbow’s Paul Gift also requested Ferguson’s EEG and EKG results. In response to his request the TDLR notified Gift on June 17th that they had located these documents, but they were withholding them. The TDLR revealed that among those documents was a page titled “First Choice Neurology - EEG document” dated February 5th, 2016, regarding an EEG performed on January 26th, 2016 by Dr. Leonard Cohen who practices in Aventura, Florida. This letter did not name any document’s pertaining to an EKG (heart exam) performed on Ferguson.

Gift then submitted a separate Public Information Act request to the TDLR asking for the name of the clinic and physician which performed an EKG on Ferguson in connection with his application to be licensed to fight in Texas. He received the following response from the TDLR:

“An extensive search of TDLR records has not located any documents/information that is responsive to your request.”

Gift was puzzled by these two responses he received from the TDLR. "Perhaps there's some legal issue I'm not aware of, but in my mind it made no sense why the TDLR would disclose Kimbo's EEG physician and clinic, while refusing to acknowledge the existence of the same information for Kimbo's EKG."

On September 19th the Office of the Attorney General made their ruling on whether or not the TDLR could reject the media’s request to release Ferguson and Harris’ medical records (including the EEG and EKG results). The TDLR shared this information via email and attached a letter outlining the official ruling.

In the letter, which was addressed from Texas’ Assistant Attorney General Kavid Singh to Brad Bowman, General Counsel for the TDLR, the Office of the AG stated, “Upon review, we find the information we have marked constitutes records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that were created or are maintained by a physician. Accordingly, the department must withhold the marked medical records under section 552.101 of the Government Code in conjunction with the MPA.”

The request for the TDLR to release any and all pre-fight and post-fight medical information for Kevin Ferguson and Dhafir Harris was rejected.

The TDLR was authorized to release part of both Ferguson and Harris’ contestant application form, though the only information included in that form were both men’s names, phone numbers, addresses, and their places of birth. Their dates of birth, email addresses, and social security numbers were redacted.

Bloody Elbow is currently researching grounds for appealing against the Attorney General’s ruling, in hopes that the medical records that convinced the TDLR that both Ferguson and Harris were healthy enough to compete at Bellator 149 are made public.

Follow Bloody Elbow for all the developments in this ongoing investigation.