Opinion
February 11, 1999
Appeal from the Supreme Court (Keniry, J.).
Between May 1986 and September 1986, plaintiff, a regular patient of defendants' gynecological and obstetrical practice since 1978, was treated for dysfunctional uterine bleeding. To treat this condition, defendant Charles W. Lasky sought to increase, plaintiff's estrogen level and to accomplish this, he initially advised plaintiff to take her birth control pill — Ortho-Novum 10/11 — four times a day for five days and, thereafter, once per day.
The condition reappeared in September 1986, and to redress it, Lasky prescribed Estinyl. Within a month thereafter, plaintiff suffered a stroke, rendering her quadripalegic and unable to speak. This medical malpractice action alleging, among other things, that defendants were negligent in prescribing these drugs and in failing to adequately monitor and examine plaintiff, ensued. The jury having found in favor of defendants and plaintiff's subsequent motion to set aside the verdict having been denied, these appeals followed.
Plaintiff maintains that Supreme Court's erroneous and prejudicial evidentiary rulings deprived her of a fair trial. We are unpersuaded. During the direct examination of her expert, Michael Brodman, plaintiff endeavored to introduce several pages from the Physician's Desk Reference (hereinafter PDR) to establish the standard of care for prescribing and monitoring the safe use of Ortho-Novum, as well as Estinyl. Supreme Court, deeming these excerpts hearsay, precluded their admission. There is authority to the effect that the PDR — as well as the drug manufacturers' package inserts — are admissible into evidence to establish the standard of care ( see, e.g., Fridovich v. Meinhardt, 247 A.D.2d 791, 792; Armstrong v. State of New York, 214 A.D.2d 812, 812-813, lv denied 86 N.Y.2d 702; Gatto v. Cooper, 201 A.D.2d 455), but it is inapposite, for the hearsay issue was not squarely confronted. In the case at hand, however, because the PDR excerpts were expressly offered for the truth of the matter asserted, therein they constituted inadmissible hearsay and, hence, were properly excluded ( see, Nicolla v. Fasulo, 161 A.D.2d 966, 968; see also, Winant v. Carras, 208 A.D.2d 618, 619, lv denied 85 N.Y.2d 812; Gunnarson v. State of New York, 95 A.D.2d 797, 797-798; Rosario v. New York City Health Hosps. Corp., 87 A.D.2d 211, 214). Nor are we convinced, as urged by plaintiff, that the learned intermediary doctrine ( Bukowski v. CooperVision, Inc., 185 A.D.2d 31, 34) creates an exception to the hearsay rule that would justify receipt of the excerpts in evidence.
Moreover, at the very worst, prohibiting introduction of this material was harmless error, for Brodman testified to facts which placed important information contained within the PDR before the jury. Notably, he stated that birth control pills of the kind prescribed by Lasky heightened the risk of stroke and, further, that when a patient complains of side effects such as swollen legs or heavy vaginal bleeding, the patient should be evaluated, prior to being continued on the medication.
Supreme Court's refusal to give a requested jury charge on prescription medication was not, as plaintiff claims, reversible error. As required, the court reviewed the parties' factual contentions, and satisfactorily instructed the jury as to the relevant principles of medical malpractice ( see, Green v. Downs, 27 N.Y.2d 205, 208), giving them a charge substantially in conformity with that set out in the Pattern Jury Instructions ( see, 1A N.Y. PJI 2:150, at 622-623 [3d ed]). Furthermore, and not unimportantly, plaintiff's proposed prescription medication charge contained a reference to matters for which there is no factual basis in the record (e.g., to "contraindications or risks contained in the patient package inserts" which was not even admitted into evidence). In these circumstances, to have given the charge would have been error ( see, Rivers v. Garden Way, 231 A.D.2d 50, 53). Since the charge "`neither directed the jury to any specific outcome nor precluded the jury from reaching any impartial verdict'" ( Hartmann v. Ten Pin Enter., 252 A.D.2d 858, 859, quoting Brennan v. Palen, 176 A.D.2d 1138, 1139), Supreme Court cannot be faulted for instructing the jury as it did.
It is also contended that reversal is called for because of Supreme Court's repeatedly erroneous evidentiary rulings. For example, plaintiff points to the fact that during Brodman's direct examination the court sustained an objection respecting whether it was proper to prescribe medication without having first arrived at a diagnosis. Defendants' objection on foundation grounds was rightly upheld, however, for the record does not support the question's underlying factual assertion that no diagnosis had been determined ( see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725; Natale v. Niagara Mohawk Power Corp., 135 A.D.2d 955, 957, lv denied 71 N.Y.2d 804). And as for plaintiff's assertion that she was unduly and improperly prevented from using depositions at trial during the examination of various witnesses, a review of the record discloses not that plaintiff was denied use of those depositions, but, rather, merely was directed by the court as to the appropriate time for their use. In doing so, Supreme Court was simply exercising its undoubted discretion to control the case before it ( see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643). We have considered plaintiff's remaining contentions and find them to be without merit.
Mikoll, J. P., Mercure, Crew III and Peters, JJ., concur.
Ordered that the order and judgment and order are affirmed, with costs.