Justices rule for pharmacies in drug-related death

CARSON CITY — The Nevada Supreme Court ruled 5-2 today that eight pharmacies in Las Vegas cannot be sued for negligence in the death of a man killed by a motorist under the influence of prescription drugs purchased at their businesses.

Justices decided Nevada’s pharmacy laws “are not intended to protect the general public from the type of injury sustained in this case.”

Pharmacies do not have a legal duty to protect people injured by their customers, they stated.

“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,” stated the court in the majority opinion.

The decision upholds a ruling by District Judge Douglas Herndon who earlier dismissed the pharmacies from a lawsuit filed by the deceased man.

But in a footnote, the justices noted that the State Board of Pharmacy in 2006, after the death occurred, approved new regulations defining what steps pharmacists must take in filling prescriptions. Justices said they have not decided yet whether the new regulation makes pharmacists liable for damages when their customers injure others.

The case arose from a June 4, 2004, traffic accident in Las Vegas where Gregory Sanchez Jr., 21, was killed and Robert Martinez severely injured when they were struck by a vehicle driven by Patricia Copening. Sanchez had stopped on U.S. Highway 95 to fix a flat tire. Martinez, a co-worker, arrived to help him. While transferring items to Martinez’ vehicle, Copening’s vehicle struck them both.

She was arrested for driving under the influence of controlled substances. Sanchez’s family and Martinez and his spouse filed a wrongful death lawsuit against Copening and several doctors.

In the course of the litigation, they learned that the state Prescription Control Substance Abuse Prevention Task Force in 2003 had written letters to pharmacies and doctors concerning Copening’s drug use.

In a 13-month period, she obtained 4,500 hydrocodone pills at 13 different pharmacies. The families then added Wal-Mart, Longs Drugs, Walgreens, CVS Pharmacy, Rite-Aid, Albertson’s and Lam’s Pharmacy to the lawsuit.

Hydrocodone is a frequently prescribed opiate-based drug used for cough suppression and pain relief. But the court pointed out the letter did not require the pharmacies to stop filling valid prescriptions for Copening.

Justices said there is “no material difference” between pharmacists who dispense drugs and bartenders who provide customers alcohol.

Under the state’s “dram shop” law, bartenders are not responsible for accidents caused by their alcohol-drinking customers.

Justices Michael Cherry and Nancy Saitta dissented. Cherry said that in past cases the court has established a special relationship constituting a duty exists between “innkeeper-guest, teacher-student and employer-employee.”

“The relationship between a pharmacy and a pharmacy customer should also be considered a special relationship,” said Cherry, allowing the families to sue the pharmacies for negligence.

He stated that before filling prescriptions, pharmacists must review the customers’ records and determine possible drug abuse and adverse side effects.

“If a pharmacist 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” under state law, Cherry wrote.

Ruling for the pharmacies were Justices Hardesty, Mark Gibbons, Michael Douglas, Ron Parraguirre and Kris Pickering.

Contact reporter Ed Vogel at evogel@reviewjournal.com or 775-687-3901.