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

94 A.D.3d 1391

944 N.Y.S.2d 329

2012 N.Y. Slip Op. 03261

Dorothy BRUMAGHIM et al., Respondents,

v.Rebecca R. ECKEL et al., Respondents,andRite Aid Corporation et al., Appellants.

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

April 26, 2012.

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.

PETERS, P.J.

Appeal from an order of the Supreme Court(Devine, J.), entered July 16, 2011 in Schoharie County, which denied a motion by defendantsRite Aid Corporation and Rite Aid Pharmacy of Cobleskill to dismiss the complaint against them.

PlaintiffDorothy Brumaghim(hereinafter plaintiff) and her husband, derivatively, commenced this action against defendants after plaintiff suffered a stroke.Plaintiffs alleged that plaintiff's physician, defendantRebecca 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 defendantsRite 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];seeLeon 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] ).“The standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business.The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention”( Hand v. Krakowski,89 A.D.2d 650, 651, 453 N.Y.S.2d 121[1982][citation omitted];accordEberle v. Hughes,77 A.D.3d 1398, 1399, 909 N.Y.S.2d 273[2010];seeWillson 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 ( seeMatter 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 alsoWinters 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][the plaintiff set forth a meritorious claim of negligence on the part of the pharmacist in switching the labels on two medications];France v. State of New York,132 Misc.2d 1031, 506 N.Y.S.2d 254[1986][finding that the prison pharmacist was negligent for failing to refill the claimant's prescription for almost one month];see alsoBichler v. Willing,58 A.D.2d 331, 333, 397 N.Y.S.2d 57[1977][finding, as a matter of law, that the pharmacist could not be found negligent where he filled the prescription precisely as he was directed, and there were no allegations that “he did any compounding, added to or took from the product as it had been prepared by the manufacturer, or that he did anything to change the prescription furnished him or that he adopted and represented the product as his own”] ).

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. Nevada1993];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.¹Rather, they assert that Rite Aid filled a prescription for a dosage that was inappropriate and inadequate for her in particular.²Imposing 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: “The propriety of a prescription depends not only on the propensities of the drug but also on the patient's condition.A prescription which is excessive for one patient may be entirely reasonable for the treatment of another.To fulfill the duty which the plaintiff urges us to impose would require the pharmacist to learn the customer's condition and monitor his [or her] drug usage.To accomplish this, the pharmacist would have to interject himself [or herself] into the doctor-patient relationship and practice medicine without a license”( Eldridge v. Eli Lilly & Co.,138 Ill.App.3d 124, 127, 92 Ill.Dec. 740, 485 N.E.2d 551, 553[1985];accordMcKee 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.“It is the duty of the prescribing physician to know the characteristics of the drug he[or she] is prescribing, to know how much of the drug he[or she] can give [the] patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient's dependence on the drug, and to tell the...