Pharmacies not liable for death, Nevada SC rules

By Kathy Woods | Dec 28, 2009

Nevada Supreme Court building

CARSON CITY, Nev. (Legal Newsline)-In a 5-2 ruling, the Nevada Supreme Court has said that eight pharmacies in the Las Vegas-area cannot be sued for negligence after a man was killed by a motorist who was under the influence of prescription drugs.

In the majority opinion the court stated last week: "The duty (under state law) is to the person for whom the prescription was written, the pharmacy's customer, if anyone, and not for the general public's protection."

The ruling follows a wrongful death lawsuit filed by the family of Gregory Sanchez Jr., who was killed when a vehicle driven by Patricia Copening struck him as he was fixing a flat tire.

Court papers said that when the police arrived on the scene they found prescription bottles and loose pills in her vehicle. They also stated that she appeared confused and blood tests confirmed the existence of hydrocodone, a pain medication.

Copening pleaded guilty to two counts of reckless driving and served nine months in jail.

During the wrongful death suit it was discovered that Copening had been flagged by Nevada's controlled substance task force for filling an extraordinary amount of prescriptions.

In the course of thirteen months, documents showed that Copening had received 4,500 hydrocodone pills at 13 different pharmacies. Doctors and pharmacies were sent letters alerting them to the problem.

But, as the court pointed out, the letters did not require the pharmacies to stop filling the valid prescriptions.

Two years after the accident, the state Board of Pharmacy enacted a new regulation that establishes procedures for when pharmacists receive questionable prescriptions.

The court noted that after receiving the letters "the pharmacies had no obligation to do anything after receiving the task force letter and only limited authority to refuse to fill any prescription."

In a dissenting opinion, Justice Cherry said just as inn-keeper and guest, teacher and student, employer and employee have a special relationship constituting a duty, so should pharmacy and customer.

"The relationship between pharmacy and pharmacy customer should also be considered a special relationship, allowing families to sue pharmacies for negligence," Cherry said. "If a pharmacist's reasonably believes that a prescription for a controlled substance was not issued in the normal course of a professional's practice, a pharmacist is prohibited from filling the prescription."

Nevada has what is called a "dram shop" law, where bartenders are not responsible for accidents caused by their alcohol drinking customers. The Justices said that there is "no material difference" between a pharmacist who dispense drugs and a bartender who provides alcohol.

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