Armstrong v. State

214 A.D.2d 812, 625 N.Y.S.2d 317, 1995 N.Y. App. Div. LEXIS 4242

Opinion

Casey, J.

Appeal from a judgment in favor of the State, entered December 16, 1993, upon a decision of the Court of Claims (Orlando, J.H.O.).

Evidence that a physician, in prescribing medication, deviated from a clear and explicit standard contained in the drug manufacturer’s recommendations to the medical profession constitutes prima facie evidence of negligence if there is competent medical evidence that the patient’s injury resulted from the physician’s failure to adhere to the manufacturer’s recommendations (see, Nicolla v Fasulo, 161 AD2d 966, 968; Paul v Boschenstein, 105 AD2d 248, 249). Assuming that claimant submitted sufficient evidence to establish the physician’s deviation from a clear and explicit standard contained in the drug manufacturer’s recommendations to the medical profession, the claim was properly dismissed because there is no competent medical evidence to establish that the medications were a proximate cause of the injuries claimed by claimant (see, Paul v Boschenstein, supra, at 250). Whether and to what extent the medications contributed to claimant’s condition is not a matter of common knowledge which a fact finder could decide in the absence of expert testimony (see, Macey v Hassam, 97 AD2d 919, 920).

Mikoll, J. P., White, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.