138 A.D.3d 179
N.Y. App. Div.2016Background
- Post-hemorrhoid surgery, Dr. Bute prescribed hydromorphone: up to 8 mg every 3–4 hours PRN; decedent had received ~6 mg in hospital earlier that day.
- Plaintiff (decedent's wife) filled the prescription at CVS; decedent later took an 8 mg dose and died; autopsy found acute hydromorphone intoxication.
- Plaintiff sued the prescriber and CVS/pharmacist defendants, alleging prescribing and dispensing negligence (dosage too high for an opioid‑naive patient and failure by pharmacist to verify).
- CVS moved for summary judgment dismissing claims against it; plaintiff cross‑moved for summary judgment on liability. Supreme Court denied both motions.
- On appeal, the Second Department considered the scope of a pharmacist's duty when filling physician prescriptions and whether CVS established entitlement to summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of pharmacist duty to warn or verify prescription | Pharmacist had duty to confirm or warn because 8 mg was contraindicated for opioid‑naive patient | Pharmacist's duty is limited to accurately filling prescriptions; physician controls clinical judgment | Pharmacist may be liable only if (1) failed to fill prescription exactly as written, or (2) prescription was so clearly contraindicated that a reasonable pharmacist must inquire. |
| Sufficiency of plaintiff's expert to create triable issue | Expert said 8 mg contraindicated for opioid‑naive patient and CVS records showed decedent was opioid‑naive | CVS argued expert relied on assumptions not supported by pharmacy records available to pharmacist | Expert opinion was based on facts not in the record as known to CVS; insufficient to defeat summary judgment. |
| Whether CVS filled prescription precisely as directed | Plaintiff claimed mislabeling increased max daily dose (64 mg v. 32 mg) | CVS showed it filled per physician's directions and any label deviation was not causative | Any labeling deviation was not a substantial factor; decedent died after a single 8 mg dose, so no triable issue on causation. |
| Entitlement to summary judgment | Plaintiff sought denial | CVS sought dismissal of complaint against them | Court granted summary judgment for CVS; order reversed as to cross‑appeal and claims dismissed. |
Key Cases Cited
- Martin v. Hacker, 83 N.Y.2d 1 (N.Y. 1993) (learned intermediary doctrine: manufacturer's duty to warn is satisfied by warning the prescribing physician)
- N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247 (N.Y. 2001) (hospital staff need not second‑guess physician unless orders are so clearly contraindicated as to require inquiry)
- Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255 (N.Y. 1968) (staff following physician orders protected unless orders are so clearly contraindicated that inquiry is required)
- Burton v. Sciano, 110 A.D.3d 1435 (App. Div. 2013) (no duty found where complaint lacked allegation that pharmacy knew or should have known prescription was contraindicated)
- Brumaghim v. Eckel, 94 A.D.3d 1391 (App. Div. 2012) (similar principle: pharmacist not liable absent knowledge of contraindication)
- Eberle v. Hughes, 77 A.D.3d 1398 (App. Div. 2010) (pharmacist may breach duty when patient history and warnings put pharmacist on notice)
- Hand v. Krakowski, 89 A.D.2d 650 (App. Div. 1982) (pharmacist issued opiates contrary to known patient history of alcoholism; duty to avoid known contraindications)