94 A.D.3d 1391
N.Y. App. Div.2012Background
- Plaintiff Brumaghim suffered a stroke and, derivatively, sued Rite Aid and its Cobleskill pharmacy after alleged improper Coumadin dosing.
- Plaintiffs claim the pharmacist failed to contact plaintiff’s physician to inquire about the prescribed dosage.
- Rite Aid moved to dismiss under CPLR 3211(a)(7) for failure to state a cause of action and Supreme Court denied the motion.
- The court reviewed the standard for a CPLR 3211(a)(7) motion and the ordinary care standard for pharmacists.
- The court held Rite Aid had no duty to warn or contact the physician about the dosage in this case, and affirmed dismissal; evidence showed the prescription was for 1 mg and plaintiffs did not allege a prior Rite Aid fill.
- The opinion emphasizes the physician’s and patient’s duties and policy reasons not to impose a pharmacist-duty to override medical judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn or contact physician for dosage changes | Brumaghim argues Rite Aid must warn/contact physician for inadequate dosage | Rite Aid argues no such duty and that it should not second-guess physician judgment | No duty to warn/contact; dismissal affirmed |
| Whether claim alleges improper filling vs. inappropriate dosage | Plaintiff asserts improper dosage was filled | Defendant contends the claim does not allege failure to fill as directed | Claim not about failing to fill as directed; court treats as dosage adequacy issue and favors no duty to intervene |
Key Cases Cited
- Hand v. Krakowski, 89 A.D.2d 650 (N.Y. App. Div. 1982) (druggist highest prudence standard; ordinary care concept for pharmacists)
- Eberle v. Hughes, 77 A.D.3d 1398 (N.Y. App. Div. 2010) (pharmacist duties and ordinary care considerations)
- Willson v. Faxon, Williams & Faxon, 208 N.Y. 108 (N.Y. 1913) (longstanding duty limits on pharmacist liability while respecting physician authority)
- Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455 (Tex. Ct. App. 2000) (pharmacist alert duty regarding prescription errors varies by jurisdiction)
- McKee v. American Home Prods., Corp., 113 Wash.2d 701 (Wash. 1989) (pharmacist not liable when filling prescribed dose unless specific fault shown)