Paralyzed, Mute, and Immobile Patients Manage to File Suits in Faux Botox Case

You Don't Have To Move To Sue

  Eric and Bonnie Kaplan are paralyzed, mute, and immobile in a West Palm Beach hospital. Yet last week this couple, who cannot speak -- and communicate only minutely with their son through brief finger gestures -- filed a lawsuit against the makers and distributors of a botulism toxin they received as a wrinkle treatment, instead of Botox.

Tort lawyers in Florida, innumerable and diabolically nimble, have blown another hole in the once rock-solid wall of limits that used to stand around the good sense of our society.

You can now sue even if you can't move or talk.

But if they could move and talk, it might be worse for the Kaplans -- thus the strategy of the timing of this suit -- for Eric and Bonnie Kaplan are victims of their own bad judgment and possibly their own greed.

Kaplan's Choice

Kaplan is a successful chiropractor and entrepreneur. He lives in an expensive home in a posh neighborhood. He could easily afford the medically unnecessary wrinkle-smoothing cosmetic Botox injections performed by a licensed, board-certified plastic surgeon. But he would have to pay top dollar for those services by that professional in that town.

So Eric made a decision to go an alternate route for his treatment.

An educated, informed, successful health care professional can reasonably be assumed to understand the risks and benefits of obtaining sophisticated care by a local board certified plastic surgeon versus traveling 60 miles to a medical mill lodged in a congested urban strip mall.

Kaplan chose to travel the sixty miles south on I-95 (a dubious judgment itself) where he and his wife received those injections from a defrocked and delicensed osteopath -- a physician who was under investigation for the deaths of five patients. It is not a far leap to speculate that these injections were obtained in this way because it was a financially attractive alternative to the Kaplans.

With Friends Like These...

Kaplan knew McComb personally, so he was not unaware of the man's training, background, ability, and legal problems. Yet he and his wife still chose to take the injections.

Furthermore, when Eric and his wife began to experience light-headedness, double-vision,  paresthesias (numbness), and a faltering ability to talk-- some particularly alarming symptoms in my mind-- they called the owner of the Fort Lauderdale "clinic", another chiropractor, Thomas Toia.

Toia and his son (a medical "technician") drove to the Kaplan's home where one report describes the Kaplans as "panicked." The Toias, however, reassured the poisoned couple that they were "dehydrated" and then decided upon a holistic therapy called a "Myer's cocktail" consisting of vitamin C, magnesium and other vitamins. This bogus therapeutic intervention delayed the Kaplans from seeking legitimate medical care, it seems, for up to a day.

Rather a Martini

But if you were experiencing trouble speaking, and seeing double, would you call a chiropractor? A back cracker? And if you happened to be availed of such a person in that situation and his remedy was a Myer's cocktail, would you drink it? Would you allow the Myer's cocktail to prevent you from seeking legitimate medical care?

Of course not.

The Kaplans chose to call Thomas Toia and they chose to drink his ridiculous cocktail for their dramatic symptoms. It is entirely the fault of the Kaplans. They decided to trust the medical advice of a non physician -- a professional, I might add, who is given license and legitimacy by our society.  And let me tell you, there are chiropractors out there every day giving people similar drinks and performing back cracking maneuvers for all kinds of maladies.  We, as a society, have said that this is okay. So how is Toia at fault?

No doubt, Eric and Bonnie Kaplan are unlucky, and I do not mean to make light of the severity of their catastrophic illnesses, but they put themselves in the position to be unlucky. There would have been much less chance of such unluck in a plastic surgeon's office, but the Kaplans chose to trade that risk for a savings in price. It was the risk they chose to run. And by no definition can Kaplan be defined as an uninformed or unwary consumer.

The Bar Isn't Lowered, It's Been Thrown Away

But does any of this matter? Not in our world of civil litigation. You don't have to be able to move, speak, think for yourself, use your expertise or be responsible for your choices. You don't have to make reasonable decisions or be responsible. You don't even have to get out of bed. All you have to do is wiggle your fingers and you're suing.

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