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ALTHOUGH THE MEDICATION DISPENSED BY DEFENDANT PHARMACY WAS PRESCRIBED, THE COMPLAINT ALLEGED THE MEDICATION WAS CLEARLY CONTRAINDICATED; THE PHARMACIST MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the pharmacist malpractice lawsuit should not have been dismissed, despite the fact that the medication was duly prescribed, criteria explained:

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory” … .

“[W]hen 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” … . Here, the amended complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed by Gibson. Nevertheless, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. Bistrian v Gibson, 2024 NY Slip Op 04303, Second Dept 8-28-24

Practice Point: Usually a pharmacist cannot be held liable for dispensing a duly prescribed medication (as was the case here), but the allegation that the medication was clearly contraindicated was deemed sufficient to state a cause of action for pharmacist malpractice.

 

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PHARMACIST’S DUTY OF CARE CLEARLY ARTICULATED AFTER IN-DEPTH ANALYSIS; SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE/WRONGFUL DEATH CAUSES OF ACTION AGAINST THE PHARMACIST AND PHARMACY SHOULD HAVE BEEN GRANTED.

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)

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Malpractice Action Against Pharmacy Dismissed; Applicable Standard of Care and Insufficiency of Expert Affidavit Explained

In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care:

With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he 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’ ” … .  “Generally, a pharmacist cannot 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” … .  Here, because plaintiff failed to allege that the dosage “fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance” …, that Rite Aid did not follow the prescribing physician’s directions, or that Rite Aid was aware that the drug was contraindicated for plaintiff, the court properly concluded that the complaint fails to state a cause of action for negligence on the part of Rite Aid … .

Contrary to plaintiff’s further contention, she failed to establish through an expert’s affidavit that the pharmacy profession itself has created a different standard of care from that set forth herein.  In support of that contention, plaintiff submitted the affidavit of a pharmacist who opined that “[t]he dose [of prednisone prescribed for plaintiff] triggers the need to contact the prescribing physician to double check the dosage and to notify the patient of the very high dose and risks associated with that dose.”  “ ‘[O]rdinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would’ [be sufficient to allege a violation of a professional standard of care] .

. . Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to” establish a violation of a standard of care … . Thus, an expert’s affidavit is insufficient to establish that a standard of care exists where it is “devoid of any reference to a foundational scientific basis for its conclusions” … .  Here, the expert cites no industry standard, treatise or other authority in support of his opinion regarding the standard of care …, and plaintiff therefore failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable case law. Burton v Sciano, et al, 837, 4th Dept 10-4-13

 

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