| Burton v Sciano |
| 2013 NY Slip Op 06447 [110 AD3d 1435] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| Bonnie L. Burton, Appellant, v Michael T. Sciano, M.D., etal., Defendants, and Rite Aid of N.Y., Inc., Doing Business asRite Aid Pharmacy, Respondent. |
—[*1] Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oneida County (Erin P. Gall, J.),entered August 17, 2012. The order granted the motion of defendant Rite Aid of N.Y.,Inc., doing business as Rite Aid Pharmacy, to dismiss the complaint and cross claimsagainst it.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuriesallegedly arising from the medical treatment that she received for breathing difficulties.Insofar as relevant here, plaintiff sought damages from defendant Rite Aid of N.Y., Inc.,doing business as Rite Aid Pharmacy (Rite Aid), for its alleged negligence in filling aprescription that was written by another defendant. Plaintiff appeals from an order thatgranted Rite Aid's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and allcross claims against it.
Contrary to plaintiff's contention, Supreme Court properly granted Rite Aid's motionto dismiss the complaint for failure to state a cause of action. It is well settled that, "[o]na motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberalconstruction . . . We accept the facts as alleged in the complaint as true,accord plaintiff[ ] the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory . . . Inassessing a motion under CPLR 3211 (a) (7), however, a court may freely consideraffidavits submitted by the plaintiff to remedy any defects in the complaint. . . and 'the criterion is whether the proponent of the pleading has a causeof action, not whether he [or she] has stated one' " (Leon v Martinez, 84 NY2d83, 87-88 [1994]; see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409,414 [2001]).
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 asordinary 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 and vigilance [*2]commensurate with thedangers involved and the consequences which may attend inattention' " (Eberle v Hughes, 77 AD3d1398, 1399 [2010]). "Generally, a pharmacist cannot be held liable for negligence inthe absence of an allegation that he or she failed to fill a prescription precisely as directedby the physician or was aware that the customer had a condition that would render theprescription of the drug at issue contraindicated" (Brumaghim v Eckel, 94 AD3d 1391, 1392 [2012]; seeElliott v A.H. Robins Co., 262 AD2d 132, 132-133 [1999], appeal dismissed94 NY2d 835 [1999], lv dismissed in part and denied in part 94 NY2d 895[2000]). Here, because plaintiff failed to allege that the dosage "fell below or exceededthe medically acceptable range of dosages that should be provided under anycircumstance" (Brumaghim, 94 AD3d at 1393), that Rite Aid did not follow theprescribing physician's directions, or that Rite Aid was aware that the drug wascontraindicated for plaintiff, the court properly concluded that the complaint fails to statea cause of action for negligence on the part of Rite Aid (see id. at 1393-1395).
Contrary to plaintiff's further contention, she failed to establish through an expert'saffidavit that the pharmacy profession itself has created a different standard of care fromthat set forth herein. In support of that contention, plaintiff submitted the affidavit of apharmacist who opined that "[t]he dose [of prednisone prescribed for plaintiff] triggersthe need to contact the prescribing physician to double check the dosage and to notify thepatient of the very high dose and risks associated with that dose." " '[O]rdinarily, theopinion of a qualified expert that a plaintiff's injuries were caused by a deviation fromrelevant industry standards would' [be sufficient to allege a violation of a professionalstandard of care] . . . Where the expert's ultimate assertions are speculativeor unsupported by any evidentiary foundation, however, the opinion should be given noprobative force and is insufficient to" establish a violation of a standard of care (Diazv New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Buchholz v Trump 767 FifthAve., LLC, 5 NY3d 1, 9 [2005]). Thus, an expert's affidavit is insufficient toestablish that a standard of care exists where it is "devoid of any reference to afoundational scientific basis for its conclusions" (Romano v Stanley, 90 NY2d444, 452 [1997]). Here, the expert cites no industry standard, treatise or other authority insupport of his opinion regarding the standard of care (see Buchholz, 5 NY3d at8-9; Nathan v Rochester Hous.Auth., 68 AD3d 1820, 1820-1821 [2009]), and plaintiff therefore failed toestablish that the pharmacy profession itself imposes a different standard of care fromthat set forth in the applicable case law. Present—Scudder, P.J., Smith, Centra,Fahey and Peradotto, JJ.