FOR THE NORTHERN DISTRICT OF GEORGIA
AB and WB
JURY TRIAL DEMANDED
COME NOW Plaintiffs, Mr. & Mrs B, individually and as next friend of their son, HB, a minor, and for their Complaint against Defendants respectfully show this Court as follows:
1. Plaintiffs are residents of California. Plaintiffs AB and WB are the parents of HB, a six year-old child that has been diagnosed with autism.
2. Defendant Stephen B. Edelson ("Edelson") is a licensed physician and resides at 5645 Claire Rose Lane, Atlanta, GA 30327.
3. Defendant The Edelson Center for Environmental and Preventive Medicine ("the Center") is a Georgia corporation. Its offices are located at 5536 Flat Shoals Rd. #A, Decatur, GA 30034. It may be served with process through its registered agent, Stephen B. Edelson, at 3833 Roswell Rd. #110, Atlanta, GA 30342. At all times relevant hereto, the Center operated a medical clinic and employed nurses and other medical assistants and technicians. At all times relevant hereto, the nurses and other medical assistants and technicians employed by the Center were acting within the scope of their employment.
4. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §1332, as complete diversity of citizenship exists among all parties to this action and this action involves an amount in controversy in excess of $75,000.00.
5. Venue is proper in this Court pursuant to 28 U.S.C. §1391, as this action is brought in the judicial district where Defendants reside.
6. Defendant Edelson is a doctor that advertises himself as an "expert in the biology of autism." He is an M.D. licensed to practice medicine in the State of Georgia. He does not have any formal medical training in pediatrics or developmental disorders, and is not Board certified in either of these areas.
8. The website discusses autism in some detail and asserts that "the specific cause of "common" autism in an individual has been shown by me [Edelson] to be a toxic one." See www.ephca.com/autism.htm. Edelson proclaims that autism "is not just genetic! It is also toxic!" Id.
9. It has not been generally accepted in the medical and scientific communities that chemical toxicity is the cause (or a major contributing cause) of autism. Reliable medical and scientific studies have not determined precisely what causes autism, although some of the most recognized causes of autism include genetic factors and brain abnormalities at birth. Scientific studies are investigating possible genetic, infectious, neurological, and environmental causes and mechanisms of autism, but this research has not identified a definitive cause of autism. See the Centers for Disease Control's statement at http://www.cdc.gov/nip/vacsafe/concerns/autism/autism-facts.htm.
10. Defendants' website goes on to state "[t]he longer the wait, the greater possibility of not being able to reverse the process that is damaging the nervous system. There is too much at stake and almost no "downside" to exploring and elucidating the pathology. The treatments that relate to the environmental and immunological characteristics are not going to cause any harm." www.ephca.com/autism.htm
11. The website tells parents of autistic children that they do not "have to be satisfied with only slight improvements but can, if they so choose, "shoot for the moon" and attempt to normalize the cerebral functions of their children." Defendants represent that Edelson's testing "confirms these toxic and environmental links to create treatment programs that have established an international reputation for success." Id.
12. Defendants widely publicize the Center to autistic parents and hold Edelson and the Center out as experts in the treatment of autism. In fact, neither Edelson nor the Center have any specialized education or training in the treatment of children with developmental disorders.
13. On the website, the Edelson Center is referred to as the "Edelson Center for Autism and Autistic Disorder," although no such entity is registered with the Composite State Board of Medical Examiners or with the Georgia Secretary of State.
14. Plaintiffs AB and WB have a seven year-old autistic son named HB. They sought the best available medical treatment for their son in hopes that his condition will improve. In connection with their search for the best available treatment for their son, they discovered Defendants' website.
15. Mr. and Mrs. B were impressed by Defendants' promises of a breakthrough cure treatment for autism. They contacted the Edelson Center for more information.
16. The Edelson Center provided Mr. and Mrs. B with substantial promotional materials that were intended to influence Mr. and Mrs B to bring HB in for treatment at the Center.
17. The materials included a summary of parental descriptions of outcomes in Autistic Children, which predicted an "Average Stated Improvement" of 61.3 percent, with an average time in treatment of 19.8 months. Defendants also represented that in a study they performed, there had been a 60 to 75% improvement in abnormal behavior characteristics in the five children studied.
18. The materials provided by Defendants also represented that autistic children can be "healed" by "removing the impediments to healing from the body and giving the body the "fuel" (nutrients) it needs. . ."
19. Based on these representations, Mr. and Mrs. B believed that Defendants had discovered a treatment that could cure their son of autism. Based on Defendants' representations, Mr. and Mrs B decided to bring their son to Atlanta to undergo treatment with Defendants.
20. In accepting HB as a patient, Defendants undertook the duty to render medical care to HB in accordance with the prevailing and acceptable professional standards of care for physicians in the national community.
21. When Ms. B arrived at the Edelson Center with her son, she was given numerous forms to fill out. One form asked her to identify how much she was willing to spend to see her child get better. Boxes were provided with different ranges of expenses. Anxious to provide her son with the best possible care, Mrs. B marked the box for "$10,000 to whatever it takes."
22. After Ms. B indicated her willingness to spend "whatever it takes" to make HB well, Defendants immediately recommended that HB undergo an extremely expensive battery of diagnostic tests. These tests were extremely painful and difficult for HB to endure. Defendants charged a total of $11,720.00 simply to perform the diagnostic tests.
23. Mr. and Mrs. B were not informed that Defendants marked up the price for these diagnostic tests drastically over the costs charged by the laboratories.
24. After receiving the test results, Defendants recommended that HB undergo an extremely lengthy and expensive course of chelation therapy and intravenous gamma globulin treatment, followed by detoxification.
25. Even though the toxic chemical level study Defendants ordered did not reveal the presence of toxic chemicals in the blood stream, Defendants still insisted that detoxification was necessary, saying that chemicals could be present in the fat tissues.
26. Defendants represented that if HB did not receive the recommended therapy immediately, his brain would be damaged, and that with treatment HB might be "cured" of autism. Based on Defendants' representations, Mr. and Mrs B felt they had no choice but to undergo the treatment.
27. Mrs. B brought HB to Atlanta to spend a month at the Edelson Center. In order to come to Atlanta for treatment at the Center, HB had to cease participating in his educational and behavioral programs. Defendants represented that the treatment they recommended was necessary and could only be performed at the Center, even if it meant that HB could not continue to work with his educational and behavioral therapy programs during this time.
28. HB began to undergo the chelation and I.V. gamma globulin treatment recommended by Defendants. The treatments were administered by unsupervised workers that, on information and belief, did not have formal nursing training or professional licenses of any kind.
29. On more than one occasion, these intravenous treatments were administered improperly. Vitamin treatments, which were mixed by hand by Defendants' assistants, are known to have been improperly mixed on at least one occasion.
30. On other occasions, equipment was not properly used or the equipment was defective, causing the treatments to run out onto the floor.
31. These treatments were very painful for HB. He had to endure long days and multiple injections at the Edelson Center. HB was subjected to repeated anal suppositories and probes and daily multiple intravenous treatments with frequent changes of needle sites due to technician errors. It is very difficult for any child, and particularly for an autistic child, to endure such prolonged treatment and multiple injections.
32. During the entire month-long period that Mrs. B and HB were at the Center for treatment, Defendant Edelson never came by in person to check on HB, to evaluate and monitor his progress, or to supervise the workers that were administering the treatments he prescribed. Defendants failed to monitor his progress (or lack thereof) and recommended continuing the treatment over lengthy periods of time without any meaningful evaluation of the propriety of continuing treatment.
33. HB did not receive any benefit from the treatment recommended by Defendants. His condition actually became much worse, and he regressed in the progress he had made through behavioral and educational therapy.
34. At the conclusion of the duration of the first month of treatment, Ms. B and HB returned to their home in New Jersey. Defendants recommended that he continue on the vitamin chelation and gamma globulin protocol that he recommended.
35. Defendants insisted that Mr. and Mrs. B purchase the vitamin supplements he recommended through the Center, and they charged a significant mark-up for these supplements. Even though some of these supplements were available through health food stores and other suppliers at far lower prices, Edelson insisted that the products be purchased through the Center. When Mrs. B confronted him about why she could not purchase the supplements elsewhere at a lower price, he replied, "I have to be able to make a profit on this somehow."
36. Defendants also refused to share HB's protocol with the physician in New Jersey that was to administer HB's I.V. treatments. Defendants insisted that all products be purchased through Defendants' clinic and shipped to the doctor's office in New Jersey for administration. By keeping the protocol secret even from HB's New Jersey doctor, Defendants were able to keep charging inflated prices for the vitamin supplements.
37. In addition to prescribing intravenous vitamin and gamma globulin therapy, Defendants recommended that HB take numerous oral supplements. Defendants prescribed a course of supplements that required HB to take dozens of supplement pills per day. Again, this treatment was very difficult for HB and caused great anxiety to both HB and his parents.
38. Mr. and Mrs. B incurred significant expenses and monetary loss as a result of the services and products sold by Defendants.
39. The treatment provided by Defendants was of absolutely no benefit to HB and in fact caused him serious harm.
40. Defendants knew or should have known when they recommended this treatment that there is no reliable medical or scientific evidence proving that autism is solely caused by environmental or chemical agents. Defendants also knew or should have known that there were no controlled, peer-reviewed studies demonstrating a causal connection between autism and exposure to environmental or chemical agents.
41. Further, even if environmental or chemical agents had been proven to be a factor in causing autism, Defendants knew or should have known that there is no reliable medical or scientific evidence supporting the idea that autism could be cured or reversed using chelation, I.V. gamma globulin or detoxification programs.
42. At the time Defendants administered chelation therapy to HB, they knew or should have known that the American Medical Association had issued a policy statement that states that "if chelation therapy is to be considered a useful medical treatment for anything other than heavy metal poisoning, hyperglycemia or digitalis toxicity, it is the responsibility of its proponents to conduct properly controlled scientific studies, to adhere to FDA guidelines for drug investigation, and to disseminate study results in the usually accepted standards."
43. Defendants heavily advertised chelation therapy as a "cure" for autism and performed chelation therapy on HB at an extremely high rate of profit, but did not conduct properly controlled scientific studies, adhere to FDA guidelines for drug investigation, or disseminate study results in the usually accepted standards.
44. Defendants failed to follow protocols that are recommended for those conducting trials of chelation therapy in autistic children. Defendants failed to conduct challenge doses in order to evaluate the likely effectiveness of chelation therapy, and once therapy was initiated, failed to monitor the results in order to evaluate the propriety of continued treatment.
45. Defendants represented that there was "no downside" to the chelation therapy they performed on HB. Defendants represented to Plaintiffs that the treatment was risk free. In fact, chelation therapy presents significant risks of which Plaintiffs were not informed.
46. One of the risks of chelation therapy is the possibility that patients undergoing chelation therapy may contract neutropenia, a blood condition seen most commonly in cancer patients undergoing chemotherapy. After undergoing the chelation treatment recommended by Defendants, HB was diagnosed with neutropenia.
47. Defendants' also represented that there was "no downside" to the intravenous gamma globulin therapy they recommended to Plaintiffs. In fact, intravenous gamma globulin therapy can cause very severe allergic reactions that can cause the death of the patient. Because intravenous gamma globulin is a blood product, it carries with it risks of infectious disease, including transmission of the Hepatitis C virus, for which no blood screening test currently exist.
48. At the time Defendants marketed vitamin supplements to Mr. and Mrs B, they knew or should have known that the American Medical Association had issued a policy statement that states that "Members of the AMA shall not: (1) coerce their patients to purchase medications, vitamins, nutritional supplements or medical devices from the physician's practice, and (2) recruit their patients to participate in marketing programs in which the physician personally benefits, financially or otherwise, from the efforts of their patients."
49. Defendants coerced Mr. and Mrs B to purchase medications, vitamins, and nutritional supplements from his practice at an extremely high rate of profit and refused to allow them to purchase the same products through other sources for less.
50. Plaintiffs reincorporate and restate Paragraphs 1 through 50 of this Complaint as though fully set forth herein.
51. Defendants owed Plaintiffs a duty to exercise that degree of skill and care ordinarily employed by members of the same medical profession under the same or substantially similar circumstances.
52. Defendants departed from the prevailing and acceptable professional standards of care in their treatment of HB and were thereby negligent, careless, willful, wanton, grossly negligent, reckless and in violation of the duties owed to HB in that they committed one of the following acts or omissions, any and all of which were violations of the prevailing and acceptable standards of care:
53. Pursuant to O.C.G.A. §9-11-9.1, Plaintiffs attach hereto the Affidavit of Linda Nathanson-Lippitt, M.D., which is relied upon and incorporated herein to generally describe the negligent acts and/or omissions of Defendants and their agents.
54. As a direct and proximate result of the negligence and departure from the professional standards of care by Defendants, HB suffered injuries including but not limited to pain and suffering, emotional distress, regression in his developmental progress, and caused HB to contract neutropenia, a blood disorder that most commonly arises in patients who undergo chemotherapy for cancer treatment.
55. As a direct and proximate result of the negligence and departure from the professional standards of care by Defendants, Mr. and Mrs B suffered injuries including loss of the funds they paid for unnecessary and worthless treatment provided by Defendants, additional expenses incurred in providing HB with additional medical and behavioral therapies necessitated to return HB to the state he was in prior to beginning treatment with Defendants, and emotional distress.
56. Plaintiffs reincorporate and restate Paragraphs 1 through 55 of this Complaint as though fully set forth herein.
57. By virtue of the physician/patient relationship, Defendants had a fiduciary duty to Plaintiffs.
58. Defendants breached their fiduciary duties to Plaintiffs by recommending unsafe and unproven treatment, failing to appropriately monitor HB's treatment, failing to inform Plaintiffs of the risks associated with this treatment, misrepresenting the safety and efficacy of the treatment, and overcharging Plaintiffs for the treatment performed.
59. As a result of Defendants' breach of fiduciary duty, Plaintiffs suffered injuries including but not limited to monetary loss, physical and mental injury, pain and suffering, and emotional distress.
60. Plaintiffs reincorporate and restate Paragraphs 1 through 59 of this Complaint as though fully set forth herein.
61. Defendants supplied information to Plaintiffs during the course of their business, profession, and employment, and in connection with a transaction in which they had a pecuniary interest
62. Defendants had a duty of reasonable care and competence to Plaintiffs, who relied on the information. Defendants were manifestly aware of the use to which the information was to be put and intended it to be so used.
63. Plaintiffs were foreseeable persons for whom the information was intended to be used in connection with their decision to undergo the treatments recommended by Defendants. Defendants made these representations with the purpose of inducing Plaintiffs to rely and act on the reliance.
64. The information provided to Plaintiffs by Defendants was materially inaccurate, and caused Plaintiffs to enter into the treatment recommended by Defendants.
65. Plaintiffs are entitled to recover actual and compensatory damages as a result of Defendants' negligent misrepresentation, including but not limited to pecuniary loss in the amount of the charges incurred by Plaintiffs for the treatment performed by Defendants, additional charges incurred by other professionals in returning HB to the physical and mental state that he was in prior to the treatment, pain and suffering, emotional damages, and such other damages as may be proven at trial, but in any amount exceeding the jurisdictional limitations of this Court.
66. Plaintiffs reincorporate and restate Paragraphs 1 through 65 of this Complaint as though fully set forth herein.
67. By virtue of the physician/patient relationship, Defendants had a confidential relationship with Plaintiffs that obligated them to disclose all material information regarding their son's treatment and be accurate and truthful in their representations to Plaintiffs.
68. Defendants made false, inaccurate, and misleading representations to Plaintiffs in violation of their duty of disclosure. These representations were made with the intention to induce Plaintiffs to undergo the course of treatment recommended by Defendants.
69. Defendants knew at the time that they made these representations that Plaintiffs placed their trust and confidence in their representations. Plaintiffs' trust and confidence was justly reposed in Defendants.
70. Defendants' representations were contrary to good conscience and operated to the injury of Plaintiffs.
71. Plaintiffs are entitled to equitable relief as a result of Defendants' constructive fraud upon Plaintiffs, including but not limited to restitution of the charges incurred for the treatments performed by Defendants, restoration of the charges incurred for subsequent medical and professional treatment required to return HB to the physical and mental state he enjoyed prior to his treatment with Defendants, and such other relief that this Court may deem appropriate.
72. Plaintiffs reincorporate and restate Paragraphs 1 through 71 of this Complaint as though fully set forth herein.
73. Defendants' fraudulent misrepresentations of material facts nullifies any consent that Plaintiffs may have given to the medical treatments recommended by Defendants.
74. Defendants' medical touching of HB without consent constitutes a battery.
75. Defendants are liable to Plaintiffs for compensatory damages including but not limited to return of the charges incurred for the treatment performed without valid consent, the cost of remedial treatment necessary to restore HB to the physical and mental condition he enjoyed prior to Defendants' unauthorized toughing, pain and suffering that HB experienced as a result of the unauthorized touching, emotional distress experienced by HB and Plaintiffs with regard to the unauthorized touching, and other compensatory damages as may be proven at trial but in any event in excess of this Court's jurisdictional amount.
76. Plaintiffs reincorporate and restate Paragraphs 1 through 75 of this Complaint as though fully set forth herein.
77. In entering into the doctor/patient relationship, Defendants intended Plaintiffs to rely, and Plaintiffs did in fact reasonably and justifiably rely, upon the representations of Defendants as to the necessity for, efficacy of and appropriateness of the medical treatments Defendants recommended.
78. But for these material representations Plaintiffs would not have entered into the relationship, agreed to spend these sums of money, or subjected their son to this treatment.
79. At the time the previously stated representations were made, Defendants either knew these representations were false or acted with reckless disregard for whether the representations were true.
80. The previously stated conduct of Defendants constitutes fraud and fraudulent inducement which was intended to cause, and did in fact cause, Plaintiffs to enter into the course of treatment recommended by Defendants.
81. As a direct and proximate result of the previously stated fraud and fraudulent inducement, Plaintiffs are entitled to compensatory damages including but not limited to return of the monies charged for provision of these services, additional damages to return HB to the state he was in prior to undergoing such treatment, pain and suffering, and such other damages as may be proven at trial, these amounts being in excess of this Court's minimum jurisdictional amount.
82. Plaintiffs reincorporate and restate Paragraphs 1 through 81 of this Complaint as though fully set forth herein.
83. Defendants' actions constituted willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would rise to the presumption of a conscious indifference to consequences.
84. Defendants' conduct justifies an award of punitive damages to deter Defendants from repeating their misconduct.
85. Plaintiffs reincorporate and restate Paragraphs 1 through 84 of this Complaint as though fully set forth herein.
86. Defendants' actions as described above constitute bad faith and intentional misconduct which has caused Plaintiffs unnecessary trouble and expense.
87. Plaintiffs are entitled to an award of the costs of this litigation, including reasonable attorneys' fees, pursuant to O.C.G.A. §13-6-11.
WHEREFORE, Plaintiffs respectfully request that this Court award the following relief:
LAW OFFICES OF ELIZABETH T. KERTSCHER, LLC
Elizabeth T. Kertscher
Georgia Bar No. 707725
Attorney for Plaintiffs
The Watkins Building
114 East Ponce de Leon Avenue
Decatur, Georgia 30030
October , 2001