Academic journal article American Journal of Law & Medicine

Scope of Nevada Pharmacies' Duty of Care: Nevada Supreme Court Rules That Pharmacies Have No Legal Duty to Third Parties for Harm Caused by Customer Misuse of Prescription Drugs

Academic journal article American Journal of Law & Medicine

Scope of Nevada Pharmacies' Duty of Care: Nevada Supreme Court Rules That Pharmacies Have No Legal Duty to Third Parties for Harm Caused by Customer Misuse of Prescription Drugs

Article excerpt

Scope of Nevada Pharmacies' Duty of Care: Nevada Supreme Court Rules that Pharmacies Have No Legal Duty to Third Parties for Harm Caused by Customer Misuse of Prescription Drugs -Sanchez v. Wal-Mart Stores.1 - The Supreme Court of Nevada held that pharmacies dispensing drugs have no duty of care to protect unidentified third parties from pharmacy customers. This recent holding effectually precludes the possibility of a successful negligence claim by such parties against Nevada pharmacies.2

Sanchez v. Wal-Mart Stores involved a tort suit against a number of Nevada pharmacies for death and injury caused by one of the pharmacies' customers. In 2004, Patricia Copening struck Gregory Sanchez Jr. and Robert Martinez with her vehicle while they were on the side of the road, killing Sanchez and leaving Martinez seriously injured.3 The incident resulted in Copening's arrest for driving under the influence of controlled substances.4 Sanchez's minor daughters, his widow, the personal representatives of Sanchez's estate, and Martinez and his wife (Appellants) filed a wrongful death and personal injury complaint against Copening.5 During discovery, Appellants learned that the Prescription Controlled Substance Abuse Prevention Task Force6 had sent a letter informing certain pharmacies about Copening's prescription history.7 Upon this finding, Appellants amended the original complaint to include the following pharmacies that dispensed prescription drugs to Copening: Wal-Mart Stores, Inc., Longs Drug Stores Co., Walgreen Co., CVS Pharmacy, Inc., Rite Aid, Albertson's Inc., and Lam's Pharmacy (Pharmacies).

The Nevada District Court concluded that the Pharmacies did not owe a legal duty to Appellants, defeating the negligence claim, and granted the Pharmacies' motion to dismiss.8 The district court held that the Nevada legislature has not created a statutory duty for the Pharmacies to take action after receiving the letter from the task force.9 Absent such a statute, the district court determined that Nevada's dram shop case law governs and that the claim would also fail for lack of proximate cause.10

On appeal to the Supreme Court of Nevada, Appellants disputed the district court's finding that no duty of care existed.11 Appellants argued that the duty existed because the Pharmacies continued to dispense drugs to Copening after notification that she was a potential drug abuser.12 Appellants also asserted that a Nevada statute,13 which requires a computerized tracking program of prescriptions filled by pharmacies, created such a duty through public policy.14 In response to Appellants' contention that Nevada Revised Statute § 453.1545 creates a duty of care for pharmacies through public policy, the court looked at the statute's language and legislative history.15 The court determined that the Legislature did not intend to create a public policy for pharmacies to protect the general public from a harm caused by a pharmacy customer and rejected this argument.16

In order to determine whether the Pharmacies owed a duty to unidentified third parties, the court looked for a special relationship between the parties.17 Whether such a duty-imposing special relationship exists between a pharmacy and a third party was a question of first impression. The court found Florida's Dent v. Dennis Pharmacy, Inc. persuasive and concluded that a special relationship did not exist here because (1) Appellants did not have a direct relationship with the Pharmacies, and (2) Appellants were not an identifiable or known party to the Pharmacies.18

Appellants also asserted a negligence per se claim against the Pharmacies. They contended that the Pharmacies violated a number of statutes and regulations designed to protect the general public from unlawful distribution of controlled substances.19 The court, however, concluded that the statutes and regulations relied upon by Appellants were intended for the protection of the pharmacy customer who fills the prescription rather than for the general public's protection. …

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