Judge James Chamblen had the opinion that in each case the plaintiff was a patient of Dr. Berman.  The patients thought they were being injected with Botox Cosmetic, but in February 2004, the doctor had used a Botulinum Toxin Type A product that was sold and distributed by Toxin Research International, Inc. This product had not been approved or licensed by the FDA.  In fact, the label on the vials used by Dr. Berman stated “for research purposes only – not for human use.”

Dr. Berman did not tell the patients that he used this product in lieu of Botox.  According to plaintiffs, the doctor gave them the injections and represented that he was using Botox.  He allegedly never disclosed that he was using a non-licensed and cheaper product.

The defendant had attempted to have the case dismissed because the actions occurred more than two years prior to the case being filed.  However, the case was not dismissed.

The opinion read, “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.”

In the case against Radiology Associates, a patient claimed that the defendants were negligent when they performed and interpreted numerous radiological studies from December 2002 to October 2005.  The patient claims that during this time, she showed symptoms that were consistent with a brain tumor located in the trigeminal nerve.

The Richmond Circuit Court did not accept the argument that the “continuous treatment rule” applies to discrete radiologic studies.  Based on the court’s ruling, there was basically no “assumption of ongoing treatment” in the patient’s case.

Although the court probably correctly interpreted the Virginia law, this law is outdated and antiquated.  It is unfortunate that this patient, who was suffering from a tumor during the entire time she relied on the radiologist’s reports, cannot pursue justice.  This type of case should not happen in this day and age.