QUESTION:
My mother-in-law was diagnosed with stage 4 gastric cancer in July 2012 and she is currently under treatment. She had been taking the drug azathioprine for Crohn’s disease. Immediately upon diagnosis she was ordered to stop azathioprine. After doing some research, we found that azathioprine is a known carcinogen and increases risks of cancer. What kind of attorney do we need? What information are necessary for us to pursue a case against a prescription drug company?
ANSWER:
You need a lawyer specializing in personal injury cases. Many personal injury victims are unsophisticated in legal matters and assume the attorney will provide or arrange for all legal services relevant to the client’s injury. “A trained attorney is more qualified to recognize and analyze legal needs than a lay client … ”. Thus, notwithstanding a limited scope of undertaking on the client’s behalf, the attorney may still have a duty to alert the client to other legal claims or remedies that are reasonably apparent, including applicable statutes of limitations and to advise the client to consult other counsel on those matters. (E.g., a “slip and fall” plaintiff may also have a workers’ compensation or medical malpractice claim.). Reported appellate decisions can be an excellent source for determining which attorneys to contact. The decisions always contain the names of the lawyers who tried a particular case.
The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence , expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. [See Flowers v. Torrance Mem. Hosp. Med. Ctr. (1994) 8 C4th 992, 1001, 35 CR2d 685, 690]. Expert testimony is required to determine whether a patient’s preoperative aspirin use posed a significant risk of excessive bleeding that should have been disclosed prior to his undergoing nonemergency surgery. (But if that risk were shown to exist, expert testimony would not be proper on the question of whether it should have been disclosed.)[Betterton v. Leichtling (2002) 101 CA4th 749, 756, 124 CR2d 644, 649; see also Jambazian v. Borden (1994) 25 CA4th 836, 849, 30 CR2d 768, 776]. Plaintiff must establish to a reasonable medical probability based upon competent expert testimony that each defendant’s product was a substantial factor in contributing to his or her injury. [Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 C4th 71, 79–80, 86 CR2d 846, 851]. It would be best to personally seek assistance from a lawyer in order to help you in filing a personal injury claim.
