| Brumaghim v Eckel |
| 2012 NY Slip Op 03261 [94 AD3d 1391] |
| April 26, 2012 |
| Appellate Division, Third Department |
| Dorothy Brumaghim et al., Respondents, v Rebecca R.Eckel et al., Respondents, and Rite Aid Corporation et al.,Appellants. |
—[*1] Fellows, Hymowitz & Epstein, New City (Jared Viders of counsel), for Dorothy Brumaghimand another, respondents. Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Matthew Robinson-Loffler ofcounsel), for Rebecca R. Eckel and others, respondents.
Peters, P.J. Appeal from an order of the Supreme Court (Devine, J.), entered July 16, 2011 inSchoharie County, which denied a motion by defendants Rite Aid Corporation and Rite AidPharmacy 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 thatplaintiff's physician, defendant Rebecca R. Eckel, improperly prescribed an inadequate dosage ofCoumadin, a medication intended to treat her medical condition. They further alleged that thepharmacy at which plaintiff filled her prescription, which was operated by defendants Rite AidCorporation and Rite Aid Pharmacy of Cobleskill (hereinafter collectively referred to as RiteAid), was negligent in failing to contact plaintiff's physician to inquire about the prescribeddosage. Rite Aid moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to[*2]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 liberalconstruction, accept the facts alleged therein as true, accord the plaintiff[s] the benefit of everypossible inference and determine whether the facts alleged fit within any cognizable legal theory"(Matter of Upstate Land & Props., LLCv Town of Bethel, 74 AD3d 1450, 1452 [2010]; see Leon v Martinez, 84 NY2d83, 87-88 [1994]; Keehle v Diocese ofSyracuse, 80 AD3d 974, 974 [2011]). "The standard of care which is imposed on apharmacist is generally described as ordinary care in the conduct of his [or her] business. Therule of ordinary care as applied to the business of a druggist means the highest practicable degreeof prudence, thoughtfulness and vigilance commensurate with the dangers involved and theconsequences which may attend inattention" (Hand v Krakowski, 89 AD2d 650, 651[1982] [citation omitted]; accord Eberlev Hughes, 77 AD3d 1398, 1399 [2010]; see Willson v Faxon, Williams &Faxon, 208 NY 108, 114 [1913]). Generally, a pharmacist cannot be held liable fornegligence in the absence of an allegation that he or she failed to fill a prescription precisely asdirected by the physician or was aware that the customer had a condition that would render theprescription of the drug at issue contraindicated (see Matter of N.Y. County Diet DrugLitig., 262 AD2d 132, 132-133 [1999], appeal dismissed 94 NY2d 835 [1999], lvdismissed and denied 94 NY2d 895 [2000]; see also Winters v Alza Corp., 690 FSupp 2d 350, 354 [SD NY 2010]; Fagan v AmerisourceBergen Corp., 356 F Supp 2d198, 212 [ED NY 2004]). In addition, liability or culpable conduct on the part of a pharmacy maybe found where there was some active negligence on the part of the pharmacist (see e.g.Drennon v Faris Pharm., 197 AD2d 863 [1993] [the plaintiff set forth a meritorious claim ofnegligence on the part of the pharmacist in switching the labels on two medications]; Francev State of New York, 132 Misc 2d 1031 [1986] [finding that the prison pharmacist wasnegligent for failing to refill the claimant's prescription for almost one month]; see alsoBichler v Willing, 58 AD2d 331, 333 [1977] [finding, as a matter of law, that the pharmacistcould not be found negligent where he filled the prescription precisely as he was directed, andthere were no allegations that "he did any compounding, added to or took from the product as ithad been prepared by the manufacturer, or that he did anything to change the prescriptionfurnished 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 thephysician, 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 acontra-indicated dosage for plaintiff" (emphasis added). While courts from otherjurisdictions have concluded that pharmacists have a duty to be alert for, and take correctivemeasures to address, patent errors on the face of a prescription, such as inadequacies in theinstructions or incompatible prescriptions (see e.g. Morgan v Wal-Mart Stores, Inc., 30SW3d 455, 466 [Tex Ct App 2000]; Horner v Spalitto, 1 SW3d 519, 523-524 [Mo CtApp 1999]; Lasley v Shrake's Country Club Pharm., Inc., 179 Ariz 583, 588, 880 P2d1129, 1134 [Ct App 1994]; Hooks SuperX, Inc. v McLaughlin, 642 NE2d 514, 517-520[Ind 1994]; Heredia v Johnson, 827 F Supp 1522, 1525 [D Nev 1993]; Dooley vEverett, 805 SW2d 380, 386 [Tenn Ct App 1990]; McKee v American Home Prods.,Corp., 113 Wash 2d 701, 720, 782 P2d 1045, 1055-1056 [1989]; Riff v MorganPharmacy, 353 Pa Super 21, 30, 508 A2d 1247, 1252 [1986], lv denied 524 A2d 494[1987]), plaintiffs make no such claim here. Indeed, plaintiffs' claim is not that Rite Aid filled aprescription that was contraindicated on its face—such as if the dosage of the drugprescribed fell below or exceeded the medically acceptable range of dosages that should be [*3]provided under any circumstance.[FN1]Rather, they assert that Rite Aid filled a prescription for a dosage that was inappropriate andinadequate for her in particular.[FN2]Imposing a duty upon a pharmacist to contact the prescribing physician whenever there has beena change in dosage—within medically acceptable ranges—of a particular patient'smedication would, in essence, require the pharmacist to question the physician's judgmentregarding the appropriateness of each customer's prescription. Sound policy reasons exist for notimposing such a duty.
As one court observed: "The propriety of a prescription depends not only on the propensitiesof the drug but also on the patient's condition. A prescription which is excessive for one patientmay be entirely reasonable for the treatment of another. To fulfil the duty which the plaintiffurges us to impose would require the pharmacist to learn the customer's condition and monitorhis [or her] drug usage. To accomplish this, the pharmacist would have to interject himself [orherself] into the doctor-patient relationship and practice medicine without a license"(Eldridge v Eli Lilly & Co., 138 Ill App 3d 124, 127, 485 NE2d 551, 553 [1985];accord McKee v American Home Prods., Corp., 113 Wash 2d at 716, 782 P2d at 1053).A physician may often have valid reasons for altering a patient's dosage of a particularmedication based on the patient's unique condition. The duty which plaintiffs urge would notonly place an undue burden on pharmacists, but would likely create antagonistic relationsbetween pharmacists and physicians and interfere with the patient-physician relationship. "It isthe duty of the prescribing physician to know the characteristics of the drug he [or she] isprescribing, to know how much of the drug he [or she] can give [the] patient, to elicit from thepatient what other drugs the patient is taking, to properly prescribe various combinations ofdrugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient'sdependence on the drug, and to tell the patient when and how to take the drug. Further, it is theduty of the patient to notify the physician of the other drugs the patient is taking. Finally, it is theduty of the drug manufacturer to notify the physician of any adverse effects or other precautionsthat must be taken in administering the drug. Placing these duties to warn on the pharmacistwould only serve to compel the pharmacist to second guess every prescription a doctor orders inan attempt to escape liability" (Jones v Irvin, 602 F Supp 399, 402 [SD Ill 1985] [citationomitted]). Indeed, the majority of jurisdictions confronted with facts similar to those presentedhere have concluded that a pharmacist has no duty to warn the patient or contact the prescribingphysician when the physician prescribes excessive or inadequate dosages of a drug (see e.g.Morgan v Wal-Mart Stores, Inc., 30 SW3d at 466; Walls v Alpharma USPD, Inc.,887 So 2d 881 [Ala 2004]; Nichols v Central Mdse., [*4]16 Kan App 2d 65, 68, 817 P2d 1131, 1133 [1991]; McKee vAmerican Home Prods., Corp., 113 Wash 2d at 720, 782 P2d at 1055-1056; Adkins vMong, 168 Mich App 726, 729-732, 425 NW2d 151, 152-153 [1988]; Stebbins vConcord Wrigley Drugs, Inc., 164 Mich App 204, 216-217 [1987]; Eldridge v Eli Lilly &Co., 138 Ill App 3d at 126-127, 485 NE2d at 552-553; Pysz v Henry's Drug Store,457 So 2d 561, 562 [Fla 1984]).
In reaching this conclusion, we do not suggest that "a pharmacy is no more than a warehousefor drugs and that a pharmacist has no more responsibility than a shipping clerk who mustdutifully and unquestioningly obey the written orders of omniscient physicians" (Riff vMorgan Pharmacy, 353 Pa Super at 28, 485 NE2d at 1251 [emphasis omitted]). However,we do recognize that a pharmacist's professional judgment must defer to the prescribingphysician's training, experience, and knowledge of the particular patient's condition. We thereforeconclude that, under the circumstances here, Rite Aid had no duty to warn plaintiff or contact theprescribing physician to inquire about the dosage of the drug prescribed. Accordingly, thecomplaint must be dismissed against Rite Aid.
Malone Jr., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion granted and complaint dismissed against defendants Rite AidCorporation and Rite Aid Pharmacy of Cobleskill.
Footnote 1: Even if plaintiffs' complaintcould reasonably be construed to allege this, on a motion to dismiss we do not accept as truefactual allegations that are " 'flatly contradicted by documentary evidence' " (Mesiti v Mongiello, 84 AD3d1547, 1549 [2011], quoting Quail Ridge Assoc. v Chemical Bank, 162 AD2d 917,918 [1990], lv dismissed 76 NY2d 936 [1990]; accord Lopes v Bain, 82 AD3d 1553, 1555 [2011]). Here, insupport of its motion, Rite Aid submitted documentary evidence establishing that Coumadin issupplied in tablets of different dosages ranging from 1 milligram to 10 milligrams. It isundisputed that the prescription at issue was for 1 milligram dosages of Coumadin.
Footnote 2: Notably, the complaint does notallege that Rite Aid had previously filled Coumadin prescriptions for plaintiff.