Brumaghim v. Eckel
Decision Date | 26 April 2012 |
Citation | 944 N.Y.S.2d 329,2012 N.Y. Slip Op. 03261,94 A.D.3d 1391 |
Parties | Dorothy BRUMAGHIM et al., Respondents, v. Rebecca R. ECKEL et al., Respondents, and Rite Aid Corporation et al., Appellants. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Barth, Sullivan & Behr, Buffalo (J. William Savage of counsel), for appellants.
Fellows, Hymowitz & Epstein, New City (Jared Viders of counsel), for Dorothy Brumaghim and another, respondents.
Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Matthew Robinson–Loffler of counsel), for Rebecca R. Eckel and others, respondents.
Before: PETERS, P.J., MALONE JR., KAVANAGH, STEIN and EGAN JR., JJ.
Appeal from an order of the Supreme Court (Devine, J.), entered July 16, 2011 in Schoharie County, which denied a motion by defendants Rite Aid Corporation and Rite Aid Pharmacy of Cobleskill to dismiss the complaint against them.
Plaintiff Dorothy Brumaghim (hereinafter plaintiff) and her husband, derivatively, commenced this action against defendants after plaintiff suffered a stroke. Plaintiffs alleged that plaintiff's physician, defendant Rebecca R. Eckel, improperly prescribed an inadequate dosage of Coumadin, a medication intended to treat her medical condition. They further alleged that the pharmacy at which plaintiff filled her prescription, which was operated by defendants Rite Aid Corporation and Rite Aid Pharmacy of Cobleskill (hereinafter collectively referred to as Rite Aid), was negligent in failing to contact plaintiff's physician to inquire about the prescribed dosage. Rite Aid moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Supreme Court denied the motion, prompting this appeal by Rite Aid.
On a motion to dismiss pursuant to CPLR 3211(a)(7), “we afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff[s] the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory” (Matter of Upstate Land & Props., LLC v. Town of Bethel, 74 A.D.3d 1450, 1452, 905 N.Y.S.2d 284 [2010];see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994];Keehle v. Diocese of Syracuse, 80 A.D.3d 974, 974, 915 N.Y.S.2d 352 [2011] ). ( Hand v. Krakowski, 89 A.D.2d 650, 651, 453 N.Y.S.2d 121 [1982] [citation omitted]; accord Eberle v. Hughes, 77 A.D.3d 1398, 1399, 909 N.Y.S.2d 273 [2010];see Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 114, 101 N.E. 799 [1913] ). Generally, a pharmacistcannot be held liable for negligence in the absence of an allegation that he or she failed to fill a prescription precisely as directed by the physician or was aware that the customer had a condition that would render the prescription of the drug at issue contraindicated ( see Matter of N.Y. County Diet Drug Litig., 262 A.D.2d 132, 132–133, 691 N.Y.S.2d 501 [1999],appeal dismissed94 N.Y.2d 835, 703 N.Y.S.2d 67, 724 N.E.2d 762 [1999],lv. dismissed and denied94 N.Y.2d 895, 706 N.Y.S.2d 697, 727 N.E.2d 1251 [2000];see also Winters v. Alza Corp., 690 F.Supp.2d 350, 354 [S.D.N.Y.2010];Fagan v. AmerisourceBergen Corp., 356 F.Supp.2d 198, 212 [E.D.N.Y.2004] ). In addition, liability or culpable conduct on the part of a pharmacy may be found where there was some active negligence on the part of the pharmacist ( see e.g. Drennon v. Faris Pharm., 197 A.D.2d 863, 602 N.Y.S.2d 473 [1993] [ ]; France v. State of New York, 132 Misc.2d 1031, 506 N.Y.S.2d 254 [1986] [ ]; see also Bichler v. Willing, 58 A.D.2d 331, 333, 397 N.Y.S.2d 57 [1977] [ ] ).
Here, plaintiffs do not allege that Rite Aid failed to fill the prescription as written by the physician, and it is undisputed that Coumadin was not contraindicated for plaintiff. Rather, plaintiffs allege that Rite Aid filled “an incorrect and inconsistent prescription medication of a contra-indicated dosage for plaintiff ” (emphasis added). While courts from other jurisdictions have concluded that pharmacists have a duty to be alert for, and take corrective measures to address, patent errors on the face of a prescription, such as inadequacies in the instructions or incompatible prescriptions ( see e.g. Morgan v. Wal–Mart Stores, Inc., 30 S.W.3d 455, 466 [Tex.Ct.App.2000]; Horner v. Spalitto, 1 S.W.3d 519, 523–524 [Mo.Ct.App.1996];Lasley v. Shrake's Country Club Pharm., Inc., 179 Ariz. 583, 588, 880 P.2d 1129, 1134 [Ct.App.1994];Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517–520 [Ind. 1994];Heredia v. Johnson, 827 F.Supp. 1522, 1525 [D. Nevada 1993];Dooley v. Everett, 805 S.W.2d 380, 386 [Tenn. Ct. App. 1990];McKee v. American Home Prods. Corp., 113 Wash.2d 701, 720, 782 P.2d 1045, 1055–1056 [1989];Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 30, 508 A.2d 1247, 1252 [1986],lv. denied514 Pa. 648, 524 A.2d 494 [1987] ), plaintiffs make no such claim here. Indeed, plaintiffs' claim is not that Rite Aid filled a prescription that was contraindicated on its face—such as if the dosage of the drug prescribed fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance.1 Rather, they assert that Rite Aid filled a prescription for a dosage that was inappropriate and inadequate for her in particular.2 Imposing a duty upon a pharmacist to contact the prescribing physician whenever there has been a change in dosage—within medically acceptable ranges—of a particular patient's medication would, in essence, require the pharmacist to question the physician's judgment regarding the appropriateness of each customer's prescription. Sound policy reasons exist for not imposing such a duty.
As one court observed: ( Eldridge v. Eli Lilly & Co., 138 Ill.App.3d 124, 127, 92 Ill.Dec. 740, 485 N.E.2d 551, 553 [1985];accord McKee v. American Home Prods. Corp., 113 Wash.2d at 716, 782 P.2d 1045). A physician may often have valid reasons for altering a patient's dosage of a particular medication based on the patient's unique condition. The duty which plaintiffs urge would not only place an undue burden on pharmacists, but would likely create antagonistic relations between pharmacists and physicians and interfere with the patient-physician relationship. ...
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