pharmacy can be held liable for dispensing medication to child

Anthony T. DiPietro, Esq., made history in 2000 when a Judge agreed with his argument that a pharmacy could be held liable for the injuries that an infant sustained after taking a prescription medication. It was only the second reported case in the history of New York to hold a pharmacy liable in these circumstances. Ordinarily, a pharmacy is shielded from liability when it dispenses a prescription medication pursuant to a doctor’s order. However, Mr. DiPietro was able to convince the Court that even though the pharmacy dispensed the medication in accordance with the pediatrician’s prescription, that the pharmacy “should have known” that this child should not have been given that particular drug for the duration which is was being given.

In the case of Alcides C. (infant) v. Fustero, two year old Alcides C. was prescribed "Decadron Elixir" (a form of steroids) for a milk allergy that was causing him to have skin rashes. Within six months of being on this potent medication, the child started to undergo drastic physical changes including excessive weight gain and erratic behavior. Despite these developments, the child’s pediatrician continued to prescribe the steroids - and CVS pharmacy continued to dispense the drug. Two years later, the infant was taking to a local emergency room and found to have Cushingoid Syndrome secondary to chronic steroid use. Unfortunately, the child had already sustained permanent brain damage. Both the pediatrician and the pharmacy were sued for malpractice.

The defendant pharmacy attempted to have the case dismissed based upon the overwhelming majority of cases that had been litigated in New York State which found that a pharmacy cannot be held liable where it dispenses a prescription pursuant to doctor’s order. However, Mr. DiPietro was able to successfully defeat the defendant’s motion by arguing that even though the pharmacy dispensed the drug according to the doctor’s order, that is was unconscionable for it to continue to give the medication for over two years which resulted in the plaintiff’s brain damage. The Court agreed with Mr. DiPietro's argument and rejected the defendant pharmacy's motion.