October 27, 2013

162017_132140396847214_292624_nIn a case decided by the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department (“New York Supreme Court”) on October 4, 2013, the New York Supreme Court held that 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.

The Lower Court’s Decision

On August 17, 2012, the Supreme Court, Oneida County, had granted the motion of defendant Rite Aid of N.Y., Inc. (“Rite Aid Pharmacy”) to dismiss the complaint filed by the plaintiff that alleged that she was injured as a result of Rite Aid Pharmacy negligently filling a prescription that was written by the other defendant.

The New York Supreme Court’s Decision

The New York Supreme Court stated in its October 4, 2013 Memorandum and Order that the New York standard of care imposed on a pharmacist is ordinary care in the conduct of his or her  business — ordinary care as applied to a pharmacist means the highest practicable degree of prudence, thoughtfulness, and vigilance commensurate with the dangers involved and the consequences which may attend inattention.

The New York Supreme Court held that because the 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 Pharmacy did not follow the prescribing physician’s directions, or that Rite Aid Pharmacy was aware that the drug was contraindicated for plaintiff, the plaintiff’s complaint failed to state a cause of action for negligence on the part of Rite Aid Pharmacy.

The New York Supreme Court further held that the plaintiff’s expert’s affidavit failed to establish that the pharmacy profession itself has created a different standard of care from that stated above because the expert’s ultimate assertions were speculative or unsupported by any evidentiary foundation and therefore insufficient to establish a violation of a standard of care (the plaintiff’s expert’s affidavit stated that the dose of prednisone prescribed for the plaintiff triggered the pharmacist’s 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).

The New York Supreme Court stated that 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. In the case it was deciding, the New York Supreme Court stated that the plaintiff’s expert cited no industry standard, treatise, or other authority in support of his opinion regarding the standard of care and therefore the plaintiff failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable New York case law.

Bonnie L. Burton, Plaintiff-Appellant v. Michael T. Sciano, M.D. and Rite Aid of N.Y., Inc., d/b/a Rite Aid Pharmacy, Defendant-Respondent. Case No. CA 12-02073.

If a pharmacy error, pharmacy mistake, or pharmacy negligence caused harm to you or a loved one, you should promptly seek the legal advice of a local pharmacy malpractice lawyer (medical malpractice lawyer) in your state who may assist you with your pharmacy malpractice claim.

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