BURTON, BONNIE L. v. SCIANO, M.D., MICHAEL T. ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    837
    CA 12-02073
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
    BONNIE L. BURTON, PLAINTIFF-APPELLANT,
    V                             MEMORANDUM AND ORDER
    MICHAEL T. SCIANO, M.D., ET AL., DEFENDANTS,
    AND RITE AID OF N.Y., INC., DOING BUSINESS AS
    RITE AID PHARMACY, DEFENDANT-RESPONDENT.
    COTE & VAN DYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
    PLAINTIFF-APPELLANT.
    BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
    DEFENDANT-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 claims against it.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for
    injuries allegedly 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 a prescription that was written by another defendant.
    Plaintiff appeals from an order that granted Rite Aid’s motion
    pursuant to CPLR 3211 (a) (7) to dismiss the complaint and all cross
    claims against it.
    Contrary to plaintiff’s contention, Supreme Court properly
    granted Rite Aid’s motion to dismiss the complaint for failure to
    state a cause of action. It is well settled that, “[o]n a motion to
    dismiss pursuant to CPLR 3211, the pleading is to be afforded a
    liberal construction . . . We accept the facts as alleged in the
    complaint as true, accord plaintiff[] the benefit of every possible
    favorable inference, and determine only whether the facts as alleged
    fit within any cognizable legal theory . . . In assessing a motion
    under CPLR 3211 (a) (7), however, a court may freely consider
    affidavits submitted by the plaintiff to remedy any defects in the
    complaint . . . and ‘the criterion is whether the proponent of the
    pleading has a cause of action, not whether he [or she] has stated
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    CA 12-02073
    one’ ” (Leon v Martinez, 84 NY2d 83, 87-88; see Sokoloff v Harriman
    Estates Dev. Corp., 96 NY2d 409, 414).
    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’ ” (Eberle
    v Hughes, 77 AD3d 1398, 1399). “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”
    (Brumaghim v Eckel, 94 AD3d 1391, 1392; see Elliott v A.H. Robins Co.,
    262 AD2d 132, 132-133, appeal dismissed 94 NY2d 835, lv dismissed in
    part and denied in part 94 NY2d 895). 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” (Brumaghim, 94 AD3d at 1393), 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 (see id. at 1393-1395).
    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 (Diaz v New York Downtown Hosp., 99
    NY2d 542, 544; see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 9).
    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” (Romano v Stanley,
    90 NY2d 444, 452). Here, the expert cites no industry standard,
    treatise or other authority in support of his opinion regarding the
    standard of care (see Buchholz, 5 NY3d at 8-9; Nathan v Rochester
    Hous. Auth., 68 AD3d 1820, 1820-1821), and plaintiff therefore failed
    to establish that the pharmacy profession itself imposes a different
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    CA 12-02073
    standard of care from that set forth in the applicable case law.
    Entered:   October 4, 2013                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-02073

Filed Date: 10/4/2013

Precedential Status: Precedential

Modified Date: 11/1/2024