Abrams v. Bute

• Decision Date: 09 March 2016
• Parties: Marie ABRAMS, etc., appellant-respondent, v. Brad BUTE, etc., et al., defendants, Jessica "Smith," et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

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Marie ABRAMS, etc., appellant-respondent,
v.
Brad BUTE, etc., et al., defendants,

Jessica "Smith," et al., respondents-appellants.

Supreme Court, Appellate Division, Second Department, New York.

March 9, 2016.

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Anthony T. DiPietro, P.C., New York, N.Y., for appellant-respondent.

McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Locke Lord, LLP [Paul E. Dwyer and Ethan I. Davis ], of counsel), for respondents-appellants.

CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and BETSY BARROS, JJ.

MILLER, J.

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This appeal and cross appeal require consideration of the duty owed by a pharmacist in filling a prescription issued by a

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physician. In view of our limited precedent on this subject, we take this opportunity to clarify the nature of a pharmacist's duty and the means by which the appropriate standard of care may be established in any particular case. We conclude that when a pharmacist has demonstrated that he or she did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, a pharmacist cannot be held liable for negligence in the absence of evidence that he or she failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional

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measures before dispensing the medication. Applying this standard here, the defendants Jessica "Smith," CVS Pharmacy, and CVS Albany, LLC, are entitled to summary judgment dismissing the complaint insofar as asserted against them.

I. Factual And Procedural Background

On October 17, 2007, the defendant Dr. Brad Bute performed hemorrhoid surgery on the plaintiff's decedent at North Shore Plainview Hospital. While the decedent was in the hospital, hospital staff administered medications to him, including about six milligrams of hydromorphone, a narcotic drug used to treat pain. After the surgery, Dr. Bute wrote the decedent a prescription for hydromorphone. The decedent was instructed to ingest up to eight milligrams of hydromorphone every three to four hours as needed for pain.

The decedent was driven home from the hospital by the plaintiff, his wife. She then filled the decedent's hydromorphone prescription at a CVS pharmacy located in Hicksville, New York. The plaintiff testified that when she returned home, she gave the decedent a dosage of eight milligrams of hydromorphone. About an hour later, the plaintiff found the decedent "gasping for air." The plaintiff called for an ambulance, but the decedent died shortly before it arrived. An autopsy report prepared at the request of the plaintiff indicated that the decedent died as a result of acute hydromorphone intoxication.

The plaintiff commenced this action to recover damages for, inter alia, personal injuries. The complaint alleged, among other things, that Dr. Bute was negligent in prescribing eight-milligram doses of hydromorphone to the decedent, since an eight-milligram dose of hydromorphone is dangerous for an opioid-naive patient, such as the decedent, who had not previously been exposed to that narcotic. The complaint further alleged

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that Dr. Bute was negligent in allowing the decedent to take an eight-milligram dose of hydromorphone so soon after he had been given a dose of the same drug at the hospital.

The complaint also asserted that the defendants CVS Pharmacy, CVS Albany, LLC, and the individual pharmacist that filled the prescription (hereinafter collectively the CVS defendants), were liable for the decedent's death. In this regard, the complaint alleged that the dosage of hydromorphone prescribed by Dr. Bute was so high that the CVS defendants had a duty to take steps to confirm that the prescription was appropriate for the decedent under the circumstances.

The CVS defendants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing, inter alia, that they did not breach any duty of care owed to the decedent in filling his prescription. The plaintiff opposed the motion and cross-moved for summary judgment on the issue of liability. Both sides submitted expert evidence in support of their respective positions.

The Supreme Court denied both the motion and the cross motion. The court concluded that there were material issues of fact as to whether the CVS defendants breached a duty owed to the decedent. The CVS defendants appealed and the plaintiff cross-appealed from the order.

On appeal, the CVS defendants contend that they had no duty to warn the decedent of the dangers of taking the prescribed dosage of hydromorphone or to otherwise take any steps to ensure that the prescription was appropriate for the decedent under the circumstances. The plaintiff contends that the expert evidence that she submitted in support of her cross motion demonstrated that the CVS defendants

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departed from the appropriate standard of care and that the CVS defendants failed to rebut her showing.

II. Discussion

"A tort obligation is a duty imposed by law to avoid causing injury to others" ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763 ). "A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff" ( Sanchez v. State of New York, 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 ; see Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 ). "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Espinal v. Melville Snow

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Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; see Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 ).

"The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court" ( Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 679 N.E.2d 616 ; see Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922 ). In this sense, the term "duty" is best used to describe "the relation between individuals which imposes upon one a legal obligation for the benefit of the other" (Prosser & Keeton, Torts § 53 at 356 [5th ed. 1984] ).

In this case, the plaintiff alleged that the CVS defendants filled and dispensed the hydromorphone prescription that had been issued by Dr. Bute. In undertaking to perform these tasks for the benefit of the decedent, the CVS defendants entered into a relationship with him. Given the existence of such a relationship, there is little difficulty in concluding that the CVS defendants owed him a duty of care in filling and dispensing the hydromorphone prescription (see Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 114, 101 N.E. 799 ; Allan v. State S.S. Co. [Ltd. ], 132 N.Y. 91, 95, 30 N.E. 482 ; Brumaghim v. Eckel, 94 A.D.3d 1391, 1392, 944 N.Y.S.2d 329 ).

The CVS defendants nevertheless argue that the scope of this duty, as a matter of law, did not include any obligation to warn the decedent of the dangers of taking the prescribed dosage of hydromorphone or to take any steps to confirm that the prescription was not issued in error. The CVS defendants contend that the prescribing physician is solely responsible for determining whether the prescription is appropriate for any particular patient and that requiring a pharmacist to verify the appropriateness of a prescription would undermine the physician-patient relationship and intrude into the exclusive professional sphere of the treating physician.

"In negligence cases, once a duty is found, the duty, in theory at least, always requires the same [general] standard of conduct, that of a reasonable person under the same or similar circumstances" (Prosser & Keeton, Torts § 37[4] at 236 [5th ed.]; see generally 1A N.Y. PJI3d 2:10 at 219 [2015] ). Accordingly, in order to determine whether liability exists, "the jury must compare the defendant's conduct to that of a reasonable person under like circumstances" ( Reis v. Volvo Cars of N. Am., 24 N.Y.3d 35, 42, 993 N.Y.S.2d 672, 18 N.E.3d 383 ). Where the case consists "exclusively of facts whose significance could be well divined by laymen," the jury is "expected to apply their ordinary judgment and practical

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experience" in order to determine what a reasonably prudent person would have done under the particular circumstances of the case and

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whether the defendant deviated from that standard of care ( Havas v. Victory Paper Stock Co., 49...