STATE OF GEORGIA
JURY TRIAL DEMANDED
COME NOW Plaintiffs, SM and TM (hereinafter collectively referred to as "the Parents"), individually and as next friend of their son, GM, a minor, and for their Complaint against Defendants Stephen B. Edelson, M.D. and The Edelson Center for Environmental and Preventive Medicine, Inc. (hereinafter collectively referred to as "Defendants") respectfully show this Court as follows:
1. Plaintiffs SM and TM are residents of Springfield, Georgia and are the parents of GM, a ten year-old child.
2. Defendant Stephen B. Edelson, M.D. ("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, Inc. ("the Center") is a Georgia corporation. Its offices are located at 3833 Roswell Rd., #110, Atlanta, GA 30342. 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 and venue are proper in this Court.
5. 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.
6. The Parents contacted Defendants after hearing about Edelson
through a former patient. At the time, GM was eight (8) years
old. He had been diagnosed as suffering with pervasive developmental
disorder ("PDD") and classified as autistic by the
local school system's preschool intervention program, although
he had not been diagnosed as autistic by his physician.
7. Defendants provided the Parents with a substantial amount of promotional materials designed to induce The Parents to bring their son in for treatment at the Center.
8. Defendants' promotional materials discuss 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." Edelson proclaims that autism "is not just genetic! It is also toxic!" Id.
9. It is not been generally accepted in the medical and scientific communities that chemical or heavy metal 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 widely recognized potential 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' promotional materials also stated "[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."
11. The promotional materials also tell 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. Mr. and Mrs. M were impressed by Defendants' promises of a breakthrough treatment for autism. They contacted the Edelson Center for more information.
14. The Parents were told by Defendants that the treatment offered by Defendants would be helpful for their son. Although Defendant Edelson told the Parents that he could not promise them that their son would be a hundred percent "cured," he told them that "everybody" that undergoes his treatments "gets better." Defendants also represented in their promotional materials that in a study they performed, there had been a 60 to 75% improvement in abnormal behavior characteristics in the five children studied.
15. Defendants also told the Parents that these treatments were medically necessary and that it was extremely important to get started with treatment as soon as possible.
16. Defendant Edelson told the Parents that if the boy did begin treatment with Defendants right away, he would get Parkinson's Disease, or worse. There is no medical or scientific evidence supporting the truth of this statement.
17. The Parents inquired as to what the cost associated with Defendants' program would be. Defendants told the Parents that the boy would need to come to the Center in Atlanta to undergo initial testing. They were quoted a price of $7,000.00 for the testing.
18. The Parents arrived at the Edelson Center to begin testing
on December 26, 2002. When they arrived in Atlanta, the Parents
were told that the testing would in fact cost them approximately
$11,000.00. When the Parents complained that this was more than
the price that they had been quoted, Defendant Edelson said that
all the tests that he recommended were absolutely medically necessary,
and that failure to have the tests performed would be detrimental
to the boy. Accordingly, the Parents agreed to undergo the testing.
19. The Parents were not informed that Defendants marked up the price for these diagnostic tests drastically over the costs charged by the laboratories. In addition, the Parents were charged separately for Defendants' services in examining the boy and interpreting these tests.
20. On December 26, 2002, Defendant Edelson performed a cursory physical examination of the boy. He noted no abnormal findings on his neurological examination. He did not have the results of any tests, and had not obtained any laboratory test results or medical records from the boy's previous physicians. Without any supporting evidence, Edelson diagnosed him on the very first day with "neurotoxicity," "allergic diathesis," and "hyperactivity."
21. The Parents were also given a large stack of papers to fill out. They were asked to complete extensive questionnaires. They were then given a stack of papers and told to "just sign them," that they were "no big deal."
22. Defendants drew approximately twenty tubes of blood from the boy for use in the tests they recommended, requiring multiple needle sticks. Defendants drew all this blood in one sitting, causing him to lose consciousness.
23. Defendants also performed extensive allergy testing. Unlike generally accepted allergy testing, which involves numerous small pinpricks administered at one time, Defendants used individual syringes to inject agents into th boy's skin to determine whether there was any reaction. As a result, the boy had to endure approximately 140 individual shots during a single sitting. The parents were required to hold him down while these shots were administered. He and his parents suffered tremendously during this testing process.
24. Approximately one month after this first visit to the Center, Plaintiffs received via mail a package from Defendants. This stated that the boy had numerous different diagnoses, including neurotoxicity, chemical toxicity, heavy metal toxicity, among many others. Defendants represented that these diagnoses needed to be treated with biodetoxification, chelation, nutritional therapies, and intravenous ozone therapy.
25. Defendants informed the Parents that the boy would need to leave their home in Springfield, GA (near Savannah) and spend a two-month period in Atlanta to undergo daily treatments at the Center. Defendants represented that his therapy would be complete at the conclusion of the two-month period.
26. The Parents were reluctant to remove the boy from school,
where he had a specialized educational program tailored for his
individual needs. Defendant Edelson told Plaintiffs that it was
essential to begin the treatment right away, and that education
would be worthless until the toxic chemicals were removed from
the boy's body. Based on these representations, Plaintiffs removed
him from school and made arrangements to relocate to Atlanta
for the two-month period.
27. Upon arrival at the Edelson Center, Defendants began administering the detoxification, chelation, ozone and nutritional therapies they recommended. These treatments involved daily injections (sometimes multiple injections per day) of chelating agents, ozonated blood, and liquid nutrients.
28. Contrary to the representations made by Defendants in their promotional materials, these therapies subjected the boy to substantial risks. Ozone treatments can result in embollic phenomena, or dangerous air or clots in the blood stream. Any I.V. treatment can result in sepsis (blood poisoning). Chelation therapy can result in renal failure and blood dyscrasias. By undergoing these therapies, The boy was subjected to risks of death and disablement.
29. The boy began to undergo the detoxification, ozone, chelation and I.V. vitamin 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.
30. These treatments were very difficult and painful. The boy had to endure long days and multiple injections each day at the Edelson Center. He was subjected to daily multiple intravenous treatments with frequent changes of needle sites due to technician errors. He was required to endure multiple sessions per day of sauna "sweat" therapy, followed by intense exercise. He had adverse physical and behavioral reactions to the ozone and sauna detoxification therapy. The nutritional supplement regimen prescribed by Defendants required the boy to ingest approximately seventy pills and capsules per day. He frequently would vomit after having to ingest large quantities of supplements, yet Edelson refused to alter the supplement regimen when requested by the Parents. The treatment caused the boy to suffer significant emotional distress and physical pain, and subjected the Parents to considerable stress and anxiety as their son suffered under Defendants' care.
31. During the entire two-month-period that the Parents were at the Center for treatment, Defendant Edelson never came by in person to check on the boy, to evaluate and monitor his progress, or to supervise the workers that were administering the treatments he prescribed. Mrs. M was given a notebook to write questions or comments to Edelson, but neither she nor the boy were permitted to see Edelson personally unless they made arrangements in advance, for a charge of $185 for each 15-minute interval of Edelson's time.
32. Defendants failed to monitor the boy's 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. The boy did not receive any benefit from the treatment recommended by Defendants. His condition actually became much worse, and he lost approximately thirty pounds while following Defendants' nutritional program and sauna detoxification protocol. He regressed in the progress he had made through behavioral and educational therapy. Psychological testing performed at Edelson's direction showed that the boy''s condition had actually worsened to one of "severely autistic," whereas evaluations done prior to treating with Defendants had only indicated mild pervasive developmental disorder or mild autism.
34. At the conclusion of the duration of the second month of treatment, Plaintiffs were told that the boy still needed to continue treatment. Although testing performed at the conclusion of the two month treatment had allegedly shown that the boy was "toxin free," Edelson nevertheless told Plaintiffs that the boy would have to travel each week to Atlanta from their home in Springfield, GA to continue chelation therapy indefinitely, and would require a $1,000.00 test at a later point to check the boy's progress.
35. The Parents were also told that the boy would need to continue taking the nutritional supplements Defendants had recommended. Defendants insisted that the Parents purchase the supplements through the Center, and they charged a significant mark-up for these supplements. Even though some of these supplements were available through other suppliers at far lower prices, Edelson insisted that the products be purchased through the Center.
36. Defendants also insisted that the Parents install a home sauna to continue with "detoxification." Although Defendants had represented that the boy was "toxin-free," Defendants told the Parents that continuing "sauna detoxification" was a medical necessity, and wrote a prescription for a home sauna. Defendants sold this sauna to the Parents, incurring a substantial profit on the sale.
37. Defendants also refused to cooperate with the Parents in locating a local physician to administer the chelation therapy. Defendants insisted that the boy undergo the therapy at their offices in Atlanta, a five hour drive, every week, despite the fact that this would significantly interfere with his school schedule and educational progress and place extreme burden on the Parents. When the Parents asked Edelson to cooperate in their efforts to locate a local physician willing to perform the chelation therapy, Edelson told the Parents that he would not cooperate with their efforts and that if they chose to use another physician, he would "have no part of it."
38. The Parents incurred significant expenses and monetary loss in paying for the services and products sold by Defendants. The Parents expended over $40,000.00 in this process, and were forced to go into debt, taking out a mortgage on their home to pay for these treatments.
39. The treatment provided by Defendants was of absolutely no benefit to GM.
40. The treatment provided by Defendants caused GM serious
41. In accepting GM as a patient, Defendants undertook the duty to render medical care to GM in accordance with the prevailing and acceptable professional standards of care for physicians in the national community.
42. Defendants knew or should have known when they recommended this treatment that there is no reliable medical or scientific evidence proving that autism is 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.
43. 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, ozone, detoxification or nutritional supplement programs.
44. At the time Defendants administered chelation therapy to GM, 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."
45. Defendants advised Plaintiffs that chelation therapy was medically necessary and that the therapy would reverse the brain damage caused by the boy's alleged heavy metal toxicity. They performed chelation therapy on GM 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.
46. At the time Defendants marketed vitamin supplements to the Parents, 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."
47. Defendants coerced the Parents 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.
48. The Parents reincorporate and restate Paragraphs 1 through
47 of this Complaint as though fully set forth herein.
49. 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.
50. Defendants departed from the prevailing and acceptable professional standards of care in their treatment of GM and were thereby negligent, careless, willful, wanton, grossly negligent, reckless and in violation of the duties owed to GM 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:
(a) In recommending and administering diagnostic tests, medical treatments, and nutritional treatments to GM without sufficient evidence of their medical necessity or efficacy;
(b) After prescribing treatments and beginning a course of therapy, failing to sufficiently monitor GM's progress and discontinue therapies where there were insufficient clinical indicators of improvement;
(c) In recommending expensive and unproven treatments without adequate medical or scientific evidence or support for the proposition that these treatments are medically beneficial for treatment of children with autism;
(d) In failing to disclose the risks associated with these expensive and unproven treatments;
(e) In coercing the Parents to purchase medical products, diagnostic tests, pharmaceutical products; vitamins, and nutritional supplements from Defendants' practice at drastically inflated prices; and
(f) In causing the boy to be removed from educational programs for extended periods of time without undertaking measures to prevent regression as a result of the suspension of his education.
51. Pursuant to O.C.G.A. §9-11-9.1, Plaintiffs attach hereto the Affidavit of Robert S. Baratz, M.D., PhD, DDS, which is relied upon and incorporated herein to generally describe the negligent acts and/or omissions of Defendants and their agents.
52. As a direct and proximate result of the negligence and departure from the professional standards of care by Defendants, GM suffered injuries including but not limited to pain and suffering, emotional distress, extreme weight loss, malnutrition, and regression in his developmental progress.
53. As a direct and proximate result of the negligence and departure from the professional standards of care by Defendants, GM suffered physical injuries, pain and suffering, and emotional distress.
54. As a direct and proximate result of the negligence and departure from the professional standards of care by Defendants, Plaintiffs SM and TM suffered injuries including loss of the funds they paid for unnecessary and worthless treatment provided by Defendants, additional expenses incurred in providing the boy with additional medical and behavioral therapies necessitated to return the boy to the state he was in prior to beginning treatment with Defendants.
55. Plaintiffs reincorporate and restate Paragraphs 1 through 54 of this Complaint as though fully set forth herein.
56. By virtue of the physician/patient relationship, Defendants had a fiduciary duty to Plaintiffs.
57. Defendants breached their fiduciary duties to Plaintiffs by recommending unsafe and unproven treatment, failing to appropriately monitor the boy'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.
58. 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.
59. Plaintiffs reincorporate and restate Paragraphs 1 through
58 of this Complaint as though fully set forth herein.
60. 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.
61. 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.
62. 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.
63. The information provided to Plaintiffs by Defendants was materially inaccurate, and caused Plaintiffs to enter into the treatment recommended by Defendants.
64. 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 the boy 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.
65. Plaintiffs reincorporate and restate Paragraphs 1 through 64 of this Complaint as though fully set forth herein.
66. 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.
67. 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.
68. 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.
69. Defendants' representations were contrary to good conscience
and operated to the injury of Plaintiffs.
70. 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 the to the physical and mental state he enjoyed prior to his treatment with Defendants, and such other relief that this Court may deem appropriate.
71. Plaintiffs reincorporate and restate Paragraphs 1 through 70 of this Complaint as though fully set forth herein.
72. Defendants' fraudulent misrepresentations of material facts nullifies any consent that Plaintiffs may have given to the medical treatments recommended by Defendants.
73. Defendants' medical touching of GM without consent constitutes a battery.
74. 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 the boy to the physical and mental condition he enjoyed prior to Defendants' unauthorized toughing, pain and suffering that the boy experienced as a result of the unauthorized touching, emotional distress experienced by Graham 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.
75. Plaintiffs reincorporate and restate Paragraphs 1 through 74 of this Complaint as though fully set forth herein.
76. 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.
77. 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.
78. 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.
79. 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.
80. 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 the boy to the state he was in prior to undergoing such treatment, pain and suffering, and such other damages as may be proven at trial.
81. Plaintiffs reincorporate and reallege the allegations of Paragraphs 1 through 80 above as though fully set forth herein.
82. Defendants are liable for their own actions and for the acts of their employee/agents via the doctrine of respondeat superior and the principles of agency.
83. Defendants' conduct was intended to and did inflict severe mental and emotional distress upon Plaintiffs.
84. The malicious and willful acts of Defendants were so extreme and outrageous as to cause Plaintiffs to suffer severe mental and emotional distress.
85. As a direct and proximate result of Defendants' intentional infliction of emotional distress upon Plaintiffs, Plaintiffs are entitled to recover damages for emotional pain and suffering, emotional distress, humiliation, and embarrassment
86. Plaintiffs reincorporate and restate Paragraphs 1 through 85 of this Complaint as though fully set forth herein.
87. 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.
88. Defendants' conduct justifies an award of punitive damages under O.C.G.A. § 51-12-5.1 to deter Defendants from repeating their misconduct.
89. Plaintiffs reincorporate and restate Paragraphs 1 through 88 of this Complaint as though fully set forth herein.
90. Defendants' actions as described above constitute bad faith and intentional misconduct which has caused Plaintiffs unnecessary trouble and expense.
91. 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:
(a) General, special and compensatory damages in an amount to be proven at trial;
(b) Punitive damages in an amount to be determined at trial pursuant to O.C.G.A. §51-12-5.1;
(c) Costs of litigation and attorneys' fees pursuant to O.C.G.A. §13-6-11;
(d) For a trial by jury;
(e) That process issue and service be made upon Defendants as provided by law; and
(f) For such other relief as this Court may deem just and proper.
This _______ day of December, 2002.
LAW OFFICES OF ELIZABETH T.
Elizabeth T. Kertscher
Georgia Bar No. 707725
Attorney for Plaintiffs
The Watkins Building
114 East Ponce de Leon Avenue
Decatur, Georgia 30030
HILL, KERTSCHER & PIXLEY, LLP
Douglas R. Kertscher
Ga. Bar No. 416265
Overlook III, Suite 750
2589 Paces Ferry Road
Atlanta, GA 30330
Attorneys for Plaintiffs