The Second Department, in a full-fledged opinion by Justice Miller, reversing Supreme Court, determined defendant pharmacist and pharmacy (the CVS defendants) were entitled to summary judgment dismissing the negligence/wrongful death causes of action against them. Plaintiff’s decedent was prescribed hydromorphone for pain (up to eight milligrams every three hours). The prescription was filled by defendant pharmacist. Shortly after returning home from the hospital and taking an eight milligram dosage of hydromorphone, plaintiff’s decedent gasped for air and died. The autopsy identified the cause of death as acute hydromorphone intoxication. Noting that the duty of care owed to a patient by a pharmacist had not been clearly articulated, the Second Department issued a comprehensive opinion tracing the historical role of pharmacists and several analogous standards of care. The court concluded the pharmacist has a duty to accurately fill a doctor’s prescription and need not inquire further unless there exists a clear-cut contraindication for use of the medication. No such contraindication was apparent here. The court described the pharmacist’s duty as follows:
… [W]e 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, that 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 measures before dispensing the medication … . Abrams v Bute, 2016 NY Slip Op 01627, 2nd Dept 3-9-16
NEGLIGENCE (PHARMACIST’S DUTY OF CARE CLEARLY ARTICULATED)/PHARMACISTS (DUTY OF CARE IN DISPENSING MEDICATION CLEARLY ARTICULATED)