| Eberle v Hughes |
| 2010 NY Slip Op 06951 [77 AD3d 1398] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Jan Eberle, Respondent, v Thomas F. Hughes, III, M.D., et al.,Defendants, and Rite Aid of New York, Inc., et al., Appellants. |
—[*1] Paul William Beltz, P.C., Buffalo (Robert B. Nichols of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredSeptember 9, 2009. The order denied the motion of defendants Rite Aid of New York, Inc. andThomas Siejka for summary judgment dismissing the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action against, inter alia, Rite Aid of New York, Inc. (RiteAid), a pharmacy, and pharmacist Thomas Siejka (hereafter, defendants) alleging that they werenegligent in dispensing a certain medication to plaintiff and in advising her about the medication. In herbill of particulars and amended bill of particulars, plaintiff further alleged that defendants were negligentin, inter alia, failing to take into account plaintiff's medical history; failing to adhere to pharmaceuticalrecommendations regarding the drug, including contraindications and warnings; failing to contactplaintiff's treating physician regarding medication contraindications; and failing to offer suggestions forpharmaceutical substitutes to plaintiff's physician.
Supreme Court properly denied the motion of defendants for summary judgment seeking dismissalof the complaint against them. "The standard of care which is imposed on a pharmacist is generallydescribed as ordinary care in the conduct of his [or her] business. The rule of ordinary care as appliedto the business of a druggist means the highest practicable degree of prudence, thoughtfulness andvigilance commensurate with the dangers involved and the consequences which may attend inattention"(Hand v Krakowski, 89 AD2d 650, 651 [1982]; see Willson v Faxon, Williams &Faxon, 208 NY 108, 114 [1913]). In support of their motion, defendants submitted the depositiontestimony of plaintiff in which she stated that she filled a prescription for Clindamycin at Rite Aid butthat, before taking the medication, she returned to Rite Aid to speak to a pharmacist because she wasconcerned about warnings for the drug listed in the patient information sheet. The record establishesthat, in [*2]particular, the patient information sheet included the warningthat a person with a history of ulcerative colitis should notify his or her physician or pharmacist beforetaking the medication, and plaintiff had such a history. Plaintiff testified that defendant pharmacist toldher that the warnings on the patient information sheet were applicable to extreme cases and that sheshould not be "paranoid" and should take the medication. We conclude under the circumstances of thiscase that a trier of fact could determine that defendants thereby breached their duty of ordinary care(see Hand, 89 AD2d at 651; seealso Raynor v St. Vincent's Hosp. & Med. Ctr. of N.Y., 12 AD3d 298 [2004]). Becausedefendants failed to meet their initial burden on their motion, we do not consider their contentionsconcerning plaintiff's opposing papers (see generally Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]). Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.