Rx & The Law
Nevada Rules on Pharmacist's Duty
by Don R. McGuire, Jr., R.Ph.,
Pharmacists Mutual Insurance Company
The Nevada Supreme Court has ruled on the case asking whether seven chain pharmacy owners and one independent owner were rightfully dismissed from the civil case, Sanchez v. Wal-Mart Stores, et al . The case arises from a June 2004 car accident caused by Patricia Copening. She was driving along a busy Nevada highway while under the influence of prescription medications. The accident killed one man, Gregory Sanchez, Jr., and injured another, Robert Martinez.
Prior to the accident, in June 2003, the Nevada Prescription Controlled Substance Abuse Prevention Task Force sent letters to 14 Las Vegas area pharmacies informing them that Copening may be abusing drugs. The letter informed the pharmacies that Copening had received approximately 4,500 hydrocodone tablets from 13 different pharmacies during the previous year. She continued to receive multiple prescriptions for hydrocodone-acetaminophen and carisoprodol between June 2003 and June 2004 when the accident occurred. She appeared confused. The police found prescription bottles and loose tablets in the vehicle. She was found to have hydrocodone in her system. She served nine months in jail after pleading guilty to reckless driving.
A civil case was filed by the Sanchez family, Mr. Martinez and his family against Copening, the doctors prescribing for her, and the pharmacies. The district court dismissed the pharmacies because Nevada law did not impose a duty on the pharmacies to take action after receiving the Task Force letter.
The Supreme Court of Nevada reviewed the case and answered two questions; First, did the pharmacy have a duty to act to prevent their patient from injuring members of the general public, and Second, did Nevada law allow third parties to maintain a negligence per se claim. The case was decided by a 5-2 margin, with a strong dissent.
The majority and the dissent agreed that under Common Law principles, a person has no duty to control the dangerous conduct of another person or to warn others of the dangerous conduct. There is an exception to this rule however. If there is a special relationship and the harm is foreseeable, the there is a duty to act. The majority and dissent diverged on the analysis of whether a special relationship existed in this case because they weren’t consistent on which parties form this special relationship. The majority talked about the relationship between the pharmacy and the victim, while the dissent talked about the relationship between the pharmacy and the patient. The majority notes that the pharmacy had no relationship with the victims and that they were, in fact, unidentifiable prior to the accident. This is an important point in the analysis because it is clear that there is a special relationship between a pharmacy and its patients.
The majority noted that the pharmacy had no requirement to act after it received the Task Force letter. However, they pointed out in a footnote that the regulations had changed since this incident, but declined to opine as to whether the decision would be different because of the rule changes. The ruling in the case was that the pharmacies had no duty to act because the law didn’t require them to act and there was no special relationship formed that would require them to act. The majority also ruled that a negligence per se claim could not be maintained because the laws in question were not intended to protect against the injuries that the plaintiffs had sustained.
While the pharmacies were dismissed in this case, the case should serve as a wakeup call to pharmacists. The dissent made some strong arguments, and even the majority hinted that the answer might be different under today’s laws. The court here said that the pharmacies did not have a duty to act upon information received from the task force, so they never provided guidance as to what a pharmacy should do if it were required to act. This issue is very likely to come up again and the next court could find that the pharmacy was required to act. Prescription drug monitoring programs work by providing information that a single pharmacy or prescriber is unlikely to obtain on their own. In the past, a single pharmacy was usually unaware of all of a patient’s activities in acquiring controlled substances and didn’t have enough information to take any action. In the present case, the pharmacies were notified that the patient was getting prescriptions filled at 12 other pharmacies around town. It is very possible that this additional information might provide the basis for a court or legislature to make a major change in the law of negligence.
Sanchez, et al. v. Wal-Mart Stores, Inc., et al., 2009 WL 5030703 (Nev.), December 24, 2009.