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Medical Malpractice/Oncologist and chemo drug manufacturer liability

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QUESTION: I suffered terrible dental problems due to the chemotherapy drugs I was given. A simple warning about dry mouth and how to treat it would have saved my teeth. Neither the oncologist nor the drug manufacturer handout mentioned to be aware of this problem. I suffered terrible pain with infected teeth and gums that had abscesses through the tissue. All unnecessary. Yet I cannot find an attorney who will sue them. I want to help the hundreds of cancer survivors who have gone through this for no good reason. None of us were warned. Please inform me why a slip and fall gets an attorney in a day but they a go silent on this issue.

ANSWER: Sylvia,

I am afraid you are pursuing the wrong claim. Any dentist is aware that chemotherapy causes dry mouth and bone necrosis.  Standard of care of a dentist is to ask what drugs you are taking.

I suggest you contact a malpractice attorney in your area to look into this type of claim.  Unfortunately, Texas has a cap on malpractice claims so it may be difficult to find a good attorney to take the case.

Very truly yours,

Paul D. Friedman, M.A., Ph.D., J.D.

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QUESTION: What would be the correct claim? I was thinking the source of the chemo drugs and the doctor who injected them. Should I take another approach? And what is the cap on lawsuits in Texas? Would it be more if I got other cancer survivors to join? Thank you so very much for your time. Sylvia Warmbrodt

ANSWER: I believe that Texas has a $250,000 cap on pain and suffering which is why most malpractice attorneys in Texas have left or changed their practices.  Your claim is for your treatment and unless your dentist failed to treat them, their potential claims are not helpful for you.

Chemo drugs are well known to be toxic and detrimental to the teeth.  In my opinion, trying to sue the drug manufacturers or oncologists for this known and accepted risk would not be a successful claim.

Very truly yours,

Paul D. Friedman, M.A., Ph.D., J.D

---------- FOLLOW-UP ----------

QUESTION: I hear you that this problem is common knowledge but I am a 4.0 1998 DBU graduate and I had never heard of it. I joined several cancer survivor groups and those people were unaware as well. My point is that it is not common knowledge among the general public. If it had been, I would have known how to prevent the devastation of a my natural teeth. They warn about hair loss, energy loss, and possible heart problems. Not one word about teeth. Had I known, I would have chosen radiation instead of chemo. So, once again please, why is it not a case? The damage is far worse than a whiplash. Sylvia

Answer
Sylvia,

I can only relate my experience as a triple board certified civil trial attorney.  In my experience, a jury is going to look at a cancer survivor and be very sympathetic to their oncologist and drug manufacturer that saved their life.  It is unlikely you will sway alot of jurors that the patient would bypass their best chance of recovery from cancer because of dental problems when their dentist knows of the risks of chemotherapy.  I think most people understand that chemotherapy is a poison that destroys far more than cancer cells.

In this case the damages are far worse than a whilplash injury but that is not the point.  Chemotherapy is not a vanity drug; it is a life-saving measure with serious health ramifications, including dry mouth bacteria (xerostomia) or bone necrosis.  

I cannot tell you what the standard of care is for oncologists since I am not an oncologist. I can tell you that I would not be willing to put my client or my income on the line to sue an oncologist who saved someone from cancer because they did not warn the patient of severe dental problems. Attorneys invest in excess of $50,000 to litigate a malpractice case and spend countless hours while the client invests emotionally.  I personally would not litigate a dental malpractice matter unless their was a lack of diagnosis of cancer.

It is a potentially viable claim but I just don't think you will find a qualified attorney who is willing to litigate such a claim.

Very truly yours,

Paul D. Friedman, M.A., Ph.D., J.D.

Medical Malpractice

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Paul D. Friedman, M.A., Ph.D., J.D.

Expertise

I have been a practicing civil trial attorney since 1989 dealing primarily with malpractice issues. I litigate very select medical malpractice cases on behalf of patients or their families. I am a Certified Civil Trial Specialist by the National Board of Trial Advocacy. I am also Certified in Injury and Wrongful Death by the Arizona State Bar Board of Legal Specialization.

In addition to my law degree, I received a Master of Arts in Bioethics and a Doctorate of Philosophy involving Medical Ethics. Because I am also an Adjunct Professor in Research and Medical Ethics at a medical school, I routinely consult with physicians and hospitals regarding medical ethics issues in an effort to improve patient care.

I can answer questions dealing with medical ethics principles. I can also respond to questions regarding potential malpractice issues.

For more information, you can view my website at WWW.EXPERTETHICS.COM

Experience

I have been a practicing trial attorney since 1989 and I have a masters degree in bioethics and a doctorate of philosophy regarding comparative ethics.

Organizations
State Bar of Arizona
State Bar of Colorado (inactive)
District of Columbia Bar (inactive)
Federal Bar
Licensed in Arizona District Court
Licensed in Ninth Circuit Court of Appeals
licensed in the United States Supreme Court
American Bar Association
National Board of Trial Advocacy
American Association for Justice
Arizona Trial Lawyers Association
American Society for Bioethics and Humanities
Kennedy Institute of Ethics
National Association of Realtors

Publications
A list of my copyrighted publications and presentations is contained at WWW.EXPERTETHICS.COM

Education/Credentials
Bachelor of Arts 1985
Juris Doctorate 1989
Master of Arts in Bioethics 2004
Doctorate of Philosophy 2006

Awards and Honors
Phi Beta Kappa
Multiple Who's Who
Southwest Superlawyers
Top 100 Trial Lawyers
AZ Magazine Top Lawyers

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