On December 25, 2010, the Nevada Supreme Court issued its opinion in Sanchez v. Wal-Mart et al. Disappointingly, the Court held that under the circumstances of this case, pharmacies do not owe a duty of care to unidentified third parties like those injured by the impaired driver, Patricia Copening, in this case. The Court further held that Nevada’s pharmacy statutes and regulations, including NRS 453.1545, are not intended to protect the general public from the type of injury sustained in this case and do not express standards of care that extend to unidentified third parties like the appellants in this case.
The good news is that the Nevada Supreme Court left open important questions that deserve answers different from the conclusions arrived at in this case. Significantly, the Court limited its holding to unidentifiable third parties affected by pharmaceutical practices before 2006 because the events in this case took place before 2006. The Court related that under 2006 amendments to its regulations, reflected in NAC 639.753, the Board of Pharmacy may have imposed a duty on pharmacies or created a special relationship that could justify imposing a duty in favor of third parties. The Court expressly did NOT determine whether that regulation does impose such a duty or create such a relationship.
Further, the Court did not discuss whether pharmacies owe a duty of care to customers or to identifiable third parties, such as relatives of customers. The Court’s holdings applied only to unidentifiable third parties.
Although I had hoped that the majority would reach different conclusions, I do applaud Justice Cherry and Justice Saitta for their well-reasoned dissent in this case. They argued that in the same way that the courts recognize that a special relationship exists between an innkeeper and guest, a teacher and student, and an employer and employee, a special relationship also exists between a pharmacist and a pharmacy customer. Therefore, pharmacies have a duty to take measures to protect foreseeable victims, like the third parties injured in this case, from foreseeable harm. The pharmacies should have foreseen the possibility that Patricia Copening would harm the victims in this case because of the actual notice that the pharmacies received from the Task Force, warning them that Copening had bought $4,500 hydrocodone pills within a 12-month period by having numerous prescriptions filled at 13 different pharmacies. After receiving this notice, the pharmacies should have recognized that Copening may be misusing the prescription drugs and that continuing to fill Copening’s prescriptions for hydrocodone or SOMA could result in harm to Copening or to others. They had a duty to review her records and to consider the Task Force letter before filling additional prescriptions.
The dissent also argued that the legislature designed various Nevada statutes to protect others against the type of injury that the appellants suffered in this case. According to the language of NRS 639.213 and 639.0070(1)(a), pharmacology affects the public safety and welfare, and the Board must adopt regulations pertaining to pharmacy practice in order to protect the public. Those provisions, coupled with other statutes that require pharmacists to ensure that substances are being dispensed only for medically necessary purposes, make it apparent that the legislature “intended to prevent pharmacy shopping and the overfilling of certain controlled substances, and ultimately to protect the general public from prescription-drug abuse and its effects.” Based on those statutes, the appellants in this case should be able to file a lawsuit against the pharmacies for negligence per se.
The law provides standards for pharmacists confronted with suspect prescriptions. The Controlled Substances Act (Title 21 CFR 1306.04) recognized a pharmacist’s independent duty to determine whether a prescription has been issued for a "legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice" before dispensing the controlled substance to the customer. The DEA’s Pharmacist’s Manual emphasizes this responsibility in its chapter "Prescription Requirements," section "Purpose of Issue," and again in its chapter "Dispensing Requirements," sections "Internet Pharmacy" and "Central Fill Pharmacy."
It is important to remember that sometimes pharmacies are the last line of defense and that a prescription is only worth the paper it is written on until it is filled. Pharmacies and pharmacists cannot morally or legally turn a blind eye to suspect prescriptions and expect to suffer no consequences.