A Southern Nevada lawyer told the Nevada Supreme Court this month that pharmacists, at the least, had a duty to call physicians to voice their concerns before dispensing a narcotic painkiller to a woman who killed a man in a 2004 vehicle crash in Las Vegas.
Lawyer Phil Aurbach told justices that Nevada pharmacists continued to fill prescriptions for Patricia Copening even after being warned by a state task force that she might be a prescription drug abuser.
Copening killed 21-year-old Gregory Sanchez Jr. in a June 4, 2004, crash on U.S. Highway 95.
Aurbach asked justices to reinstate the wrongful death case he seeks to file against seven chain-store pharmacies that filled Copening’s prescriptions.
District Judge Douglas Herndon earlier threw out the case on the grounds that the pharmacies were not legally liable in the crash — pretty much a no-brainer.
The Supreme Court made no decision, though Justices Mark Gibbons and Jim Hardesty made comments seemingly in support of Aurbach’s position. Justice Gibbons, for instance, offered a hypothetical in which a doctor mistakenly prescribes strychnine that would kill the user. He then posed the questions: “Does the pharmacist just fill it and let someone die? Or does the pharmacist call the doctor to see if that is what you intended?”
Sanchez had pulled his vehicle off U.S. 95 after it had a flat tire. His vehicle was struck by a vehicle driven by Copening, who was found to be under the influence of hydrocodone, a narcotic pain reliever. Another motorist, who had stopped to help Sanchez, was seriously injured. Copening spent nine months in jail.
An investigation found many different pharmacies had filled prescriptions for 4,800 tablets of the drug for Copening in the 13 months before the crash. Aurbach said the pharmacies continued to fill her prescriptions even though the Nevada Prescription Controlled Substance Abuse Task Force notified them that Copening was “taking an unusual amount of these narcotics.”
Aurbach wants to sue Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy.
Defending the pharmacies, lawyer Mike Wall said Aurbach had been shopping around for “deep pockets” to sue. Wall said the pharmacists have the same protection as bartenders. Under court decisions and the state “dram shop” law, bartenders are not liable if the people to whom they serve drinks are later involved in crashes in which others are injured or killed, he pointed out. Wall said a pharmacist is not there to “second-guess a registered physician.”
Judge Herndon’s initial decision — that the pharmacies are not liable — was correct both in law and in common sense. It’s understandable that Aurbach would seek to go after the deepest available pockets on his clients’ behalf, but for the courts to adopt his reasoning would be both dangerous and absurd.
Presume the state Liquor Control Board has notified a local supermarket chain that one of their liquor customers has also been buying bottles of wine at other groceries and liquor stores. What should the manager do? Make sure every one of his cashiers, on every shift, can recognize the perpetrator? At which point they should do what, precisely, the next time Mrs. Jones — not visibly inebriated — tries to buy a perfectly legal bottle of wine? Quiz her on how many she’s bought elsewhere this week? Refuse to sell to her?
If grocery stores were to be held liable for traffic accidents caused by customers who buy their wine or liquor, their accountants’ and lawyers’ advice is not hard to guess: stop selling alcohol, entirely.
(“But painkillers are a more serious problem on the highways than alcohol!” someone will doubtless object. Wrong, Budzilla.)
Similarly, the main job of a pharmacist is to make sure we’re sold the actual drug or medicine requested, in the proper dose and at proper purity. (Sponsors of the Harrison Narcotics Act of 1914 insisted that’s all the federals wanted to control — dose and purity — and that they would never try to actually restrict what we could buy.)
The American Cancer Society reports chronic cancer pain is already substantially under-medicated in this country, due to the fear of doctors and pharmacists that they could well lose their license or even be thrown in jail should they stand accused of writing “too many” painkiller prescriptions. (The former actually happened to Las Vegas’ own pain specialist Dr. Dietrich Stoermer, a fine man and a fine doctor, despite the fact his jury unanimously acquitted him on all charges.)
How is a pharmacy clerk supposed to know which customer “looks like she might get stoned and drive”?
The person responsible for driving after consuming excessive quantities of drugs that come in little bottles labeled “Warning: May cause drowsiness; do not operate heavy machinery” is the adult consumer, no one else.
What magic confers on a 24-year-old, newly handed his or her M.D. or pharmacy license, the wisdom to play “mommy” or “daddy” to a 50-year-old patient, treated in this model as a willful and irresponsible infant — instructing us as to how much analgesic plant extract we should be “allowed” to buy and use?
We would be better off getting rid of this whole “doctor’s prescription” rigmarole, entirely — freeing physician from the parade of patients demanding scrips for the latest drug to be written up in Reader’s Digest or advertised on TV, allowing them instead to go back to what they do best, which is diagnostic consultation.
But yes, so long as the “prescription” bureaucracy remains in place, pharmacists are also bound by law to determine to the best of their ability that a prescription has actually been written by a legitimate, licensed doctor.
Beyond that, leave it alone.
In case you haven’t noticed, the “small-town corner pharmacy” has just about given up the ghost. Today, the industry is concentrated in fewer and fewer hands. Threatened with legal liability for traffic deaths caused by those taking prescription drugs, what if one and then more major pharmacy and grocery chains simply told their pharmacists to stop selling any prescription pain-killers, at all? What would that do to the already pathetic — even tragic — struggles of small-town sufferers of chronic pain to get the analgesics they need to live out their lives free of suicide-inducing agony?
Vin Suprynowicz (firstname.lastname@example.org) is the Review-Journal’s assistant editorial page editor.