Lawsuit says pharmacies have duties beyond filling abusers’ prescriptions

From an ethical perspective, it seems obvious. Of course they should do something.

But legally? Can pharmacists be held liable if a drug abuser gets in a car and kills someone?

Naturally, this isn’t hypothetical; it’s another case before the Nevada Supreme Court.

For the first time, as part of a new webcast program, the public can watch the proceedings in Carson City by going to www.nvsupremecourt.us and clicking on “oral arguments” on the right. The first case will be 10 a.m. today: Sanchez vs. Wal-Mart Stores.

The family of the late Gregory Sanchez Jr. and Robert Martinez and his wife are suing seven pharmacies for damages: Wal-Mart, Longs Drug Stores, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On Pharmacy and Lam’s Pharmacy.

Sanchez died at 21, married and the father of two, because he had a flat tire and pulled off to fix it. Martinez was injured because he went to help his co-worker.

Their attorneys also sued Patricia Copening, the driver who killed Sanchez and injured Martinez on June 4, 2004. They also sued two doctors she worked for OB/GYN Associates who gave her prescriptions for painkillers for her migraines.

Copening spent nine months in jail. Dr. D.S. Steele’s license was revoked for various reasons, including giving her controlled drug prescriptions while they were in a sexual relationship.

But those aren’t the cases before the state Supreme Court.

Today, it’s the pharmacies who are arguing they bear no responsibility for death and injuries to noncustomer third parties.

One year before the accident, the pharmacies had been given a report by the Nevada Prescription Controlled Substance Abuse Task Force, red-flagging that Copening was going to multiple pharmacies and getting painkillers, mostly hydrocodone and a muscle relaxer called Soma.

The task force provided Copening’s doctors and the pharmacies with a controlled substances usage report. The report detailed that at 14 stores she filled 60 prescriptions for about 4,500 doses of hydrocodone, plus other drugs.

How red does the flag have to be? Even after receiving that report, the pharmacies kept filling her prescriptions for the next year, and the doctors kept writing them, the lawyers argued.

The case is believed to be the first of it’s kind in the nation claiming pharmacies have a duty, because of Nevada’s task force notification program started in 1995, to take action where there is “drug-seeking behavior” such as Copening’s.

Attorneys for the pharmacies argue that pharmacists are like tavern owners and bartenders, protected from lawsuits by a third party under “dram shop” laws that say essentially someone injured by the drunk can’t sue the bartender who poured the drink.

Clark County District Judge Douglas Herndon dismissed the pharmacies from the wrongful death and personal injury lawsuit. The plaintiffs are appealing that dismissal, however, asking the higher court to agree the legislative statute established a public policy and the pharmacists did have a duty.

Yes, it’s about deep pockets. The pharmacies have more money than Copening and the doctors.

But maybe pharmacists, who are professionals, do have a duty above and beyond bartenders, especially when they receive a state report about suspicious behavior.

Surely the level of a pharmacist’s responsibility goes beyond saying, “Take this with food.”

The State Board of Pharmacy says if drug abuse is suspected, the pharmacist should “raise those concerns with the patient’s physician or the patient.” That wouldn’t have done much in this case.

Herndon ruled there is no legislative enactment that tells a pharmacy how it should respond to a task force report.

Well, that seems like a big hole in the law. Maybe legislators ought to take another look at that gap. The pharmacy is only told to track the prescriptions electronically.

Why have a task force that makes such a report if nobody is going to do anything with it? Did lawmakers just want the information collected for the sake of knowing?

If it’s really unclear, Nevada legislators should clarify what a pharmacist in such a situation should do, and they should do it quickly, before the next druggie on painkillers accidentally kills somebody.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.