Nevada Supreme Court Addresses Pharmacy Liability to Third Parties

In Sanchez v. Wal-Mart Stores, 125 Nev. Adv. Op. No. 60 (December 24, 2009), the Nevada Supreme Court examined the scope of a pharmacy’s duty of care.

In June 2004, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire and was assisted by a co-worker, Robert Martinez. The two men were hit by a vehicle driven by Patricia Copening, who was subsequently arrested for driving under the influence of controlled substances. Sanchez was killed and Martinez seriously injured as a result of the collision.

One year prior to the collision, in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force ("Task Force") sent a letter to all of the pharmacies and physicians that had dispensed narcotics to Copening or had written prescriptions for Copening. The letter warned that "from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies."

The court was faced with two issues:

1) Whether, in Nevada, pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim.

2) Whether Nevada’s pharmacy statutes and regulations create a statutory duty to support a negligence per se claim against the pharmacies.

Duty of care under common-law negligence claim

The Court held that pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party.

The Court rejected the assertion that pharmacies have a special relationship with a third party. The Court noted that the pharmacy has no direct relationship with a third party injured by a pharmacy customer, and third parties such as Martinez and Sanchez are unidentifiable members of the general public. Accordingly, the pharmacies’ dispensing of narcotics to Copening did not create a legal duty to Martinez and Sanchez.

Negligence Per Se Claim

The Court held that NRS 453.1545(1) does not create a duty to third parties upon which a negligence per se claim could be based. NRS 453.1545(1) calls for a program that tracks prescriptions that are filled by pharmacies.

Negligence per se claims are based on breaches of statutory duties. Negligence per se arises when an injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect.

Here, the negligence per se claim failed because "the duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacy’s customer, if anyone, and not for the general public’s protection."