In a very interesting case now brewing in the Circuit Court for Loudoun County, the Court is allowing a medical malpractice suit to continue against David Berman, M.D., and Dulles Cosmetic Surgery and Skin Care Center years after they were allegedly injected with a product not licensed by the Food and Drug Administration for human use.
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According the the opinion by Judge James Chamblen:
In each case the Plaintiff was a patient of Dr. Berman. In February 2004 he injected each Plaintiff with a substance that each Plaintiff thought was Botox® Cosmetic ("Botox"). However, Dr. Berman actually did not inject each Plaintiff with Botox, but he injected them with a Botulinum Toxin Type A product sold and distributed by Toxin Research International, Inc. ("TRI-toxin"). TRI-toxin had not been licensed or approved by the Federal Drug Administration ("FDA"). The label on the vials of TRI-toxin used by Dr. Berman stated "(f)or research purposes only - (n)ot for human use."
Dr. Berman did not tell either Plaintiff that he used TRI-toxin rather than Botox for the injection.
Each Plaintiff alleges that when Dr. Berman administered the injections he represented that he was injecting them with Botox, and that he never disclosed that he was using the unapproved, unlicensed and less expensive TRI-toxin.
According to Judge Chamblen, the defendant tried to have the case dismissed on the grounds that his actions occured more than two years prior to the suit being filed. In fact, according to the opinion, they argued that the Plaintiffs should have, by the exercise of due diligence, discovered the alleged fraud by reading Internet articles in 2004 and newspaper articles in December 2004 and February 2005.
The court said:
I think that the allegations of each Complaint show that Dr. Berman's fraud, concealment and misrepresentation prevented each Plaintiff from discovering what he had actually injected into them until March and May 2007. Each filed suit within one year thereafter.
According to the Court's opinion, in May 2007 Dr. Berman pled guilty in United States District Court for the Eastern District of Virginia to introducing into interstate commerce a drug that was misbranded.