Bernardo v. Ayerest Laboratories

• Decision Date: 10 January 1984
• Citation: 99 A.D.2d 430,470 N.Y.S.2d 395
• Parties: Sophie BERNARDO et al., Plaintiffs-Respondents, v. AYEREST LABORATORIES, etc., Defendant, and Edward J. Wright, Jr. et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 395

470 N.Y.S.2d 395

99 A.D.2d 430

Sophie BERNARDO et al., Plaintiffs-Respondents, v. AYEREST LABORATORIES, etc., Defendant, and Edward J. Wright, Jr. et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Jan. 10, 1984.

A.S. Julien, New York City, for plaintiffs-respondents.

K. Mauro, P.T. Crean, New York City, for defendants-appellants.

Before KUPFERMAN, J.P., and SULLIVAN, ROSS, BLOOM and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 28, 1983, which denied the motion by defendant Wright and the cross-motion by defendant DeLuca, both seeking, inter alia, summary judgment dismissing the complaint as barred by the statute of limitations, unanimously reversed on the law, without costs, and motions for summary judgment granted.

On February 6, 1978, plaintiff Sophie Bernardo instituted this action to recover for injuries suffered as a result of her ingestion of the drug "Premarin," allegedly prescribed to her by defendant physicians Wright and DeLuca.

She first consulted Dr. Wright, an obstetrician-gynecologist, in October 1967. In March 1968, he performed a hysterectomy and on July 10, 1969 prescribed Premarin. She next returned to him on October 23, 1970 complaining of back problems. Dr. Wright did not renew her prescription for Premarin, and she never saw him again.

Plaintiff consulted Dr. DeLuca, another gynecologist, on March 1, 1974, upon the recommendation of her family physician, because of some incontinence. He operated on her in April 1974 to correct this condition. She made post-operative visits to him on May 1, 1974 and May 27, 1974 and was supposed to visit him again six months later. She made a visit on August 23, 1974, complaining of vaginitis, but this was the last time Dr. DeLuca saw her.

According to Mrs. Bernardo, she took Premarin from July 1969, when it was prescribed by Dr. Wright, until August 1975, when she was hospitalized for another condition and advised to discontinue it. She had continued to refill the original prescription at a local pharmacy for those six years. When she visited Dr. DeLuca, she told him that she had been taking Premarin, and he told her to continue and gave her his own prescription for that drug. She never used it, but continued to refill the original prescription given her by Dr. Wright. Dr. DeLuca denied giving plaintiff a prescription for Premarin and Dr. Wright stated that his prescription was not unlimited but should have required renewal every six months.

Plaintiff commenced her action on February 6, 1978. Dr. Wright prescribed...