Looking for the deep pockets

It’s Friday night on a holiday weekend. Your doctor — who’s written you a legitimate prescription for a painkiller you need following a medical procedure — will be difficult to reach till Tuesday. If you don’t get that prescription filled, your long weekend might be considerably less than pleasant.

Fortunately, you’ve made it to your pharmacy while it’s still open.

Now, should the pharmacist simply fill your legal prescription, reminding you not to operate a motor vehicle or other heavy equipment while under the influence? Or should he or she say, instead, “Hold on a minute, there. How do we know you’re not one of those people who goes from pharmacy to pharmacy, acquiring more of this drug than you really need? I think we’re just going to wait and talk to Dr. Jones on Tuesday before we fill this one”?

Fortunately, the Nevada Supreme Court ruled 5-2 on Christmas Eve that local pharmacists have no such responsibility to play mind-reader, trying to police how a legitimate customer may plan to use or misuse their products once purchased.

The case began on June 4, 2004. On that date, Gregory Sanchez Jr. was killed when he was struck by a car driven by Patricia Copening in Southern Nevada. Mr. Sanchez was stopped along U.S. Highway 95 with a flat tire. His co-worker, Robert Martinez, had stopped to help him and was seriously injured.

According to court documents, survivors filed a wrongful death suit against Ms. Copening, two doctors and a medical association, and in that process discovered that she had been flagged by a regulatory task force for her prescription filling practices.

The documents showed that letters had been sent to pharmacies and doctors saying that Ms. Copening had obtained about 4,500 hydrocodone pills at 13 different pharmacies from May 2002 through May 2003.

But the state Supreme Court ruled Thursday that eight Las Vegas-area pharmacies cannot be sued for negligence. Justices upheld a lower court ruling saying pharmacies “do not have a duty to prevent a pharmacy customer from injuring an unidentified third party.”

The majority opinion, written by Chief Justice James Hardesty, says state laws and regulations cited by the appellants outline a duty by pharmacies “to the person for whom the prescription was written, the pharmacy’s customer, if anyone, and not for the general public’s protection.”

At the time of the accident, the opinion noted, “the pharmacies had no obligation to do anything after receiving the task force letter and only limited authority to refuse to fill any prescriptions.”

Justices added that the ruling does not consider new regulations, enacted by the state Board of Pharmacy in 2006 — two years after the accident — that establish procedures to be followed when pharmacists receive questionable prescriptions.

“We make no determination as to whether this regulation imposes a duty on pharmacies or creates a special relationship with customers,” the opinion said.

In his dissent, Justice Michael Cherry said, “If a special relationship exists” — similar to that between an innkeeper and his guests — “the defendant has a duty to take measures to protect foreseeable victims from foreseeable harm.”

Such a holding — though again, that’s not what the majority ruled — would place pharmacists in a position equivalent to that of a bartender, who may bear some responsibility to cut off an obviously drunken customer.

But, in fact, a pharmacy more closely resembles a by-the-bottle liquor store, which has no obligation to cross-examine its customers, trying to discern where they may have bought other quantities of alcohol this week, or how they’re planning to use them.

The person responsible for Ms. Copening’s behavior was Ms. Copening; the court was correct to limit this hunt for “deeper pockets” by the trial bar.

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