Thompson v. Potter

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 09:31:04 2012.02.03

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-014

Filing Date: December 12, 2011

Docket No. 29,705

T. DAVID THOMPSON, Individually and
as the Personal Representative of the
ESTATE OF CAROLYN ROSE BENNETT,

Plaintiff-Appellant,

v.

DOYLE D. POTTER, R.PH., and
NCS HEALTHCARE OF NEW
MEXICO, INC., a/k/a NCS
HEALTHCARE ALBUQUERQUE,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Sandenaw Law Firm, P.C.
Thomas A. Sandenaw, Jr.
CaraLyn Banks
Las Cruces, NM

for Appellant

Keleher & McLeod, P.A.
Thomas C. Bird
Kathleen M. Wilson
Hari-Amrit Khalsa
Albuquerque, NM

for Appellees

OPINION

VIGIL, Judge.

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{1} This case requires us to examine for the first time the nature of the duty owed by a
consulting pharmacist that has contracted with a nursing facility to provide pharmaceutical
services to the patients of the nursing facility. On the record before us, we hold that there
is no issue of material fact and that Defendants were properly granted summary judgment
on all of Plaintiff’s claims.

BACKGROUND

{2} Ms. Carolyn Bennett was admitted to the Casa Arena Blanca nursing home with a
diagnosis of early dementia. Upon admission, her doctor prescribed Ativan to control
agitation and seizure activity commonly associated with dementia. The prescription ordered
that Ativan be administered three times per day, as well as on an as-needed “prn” basis for
severe agitation. Eleven months after her admission, Ms. Bennett’s doctor called Casa
Arena and told a nurse employed by Casa Arena to discontinue the as-needed Ativan dose.
The nurse improperly transcribed the order. Instead of discontinuing the as-needed Ativan
dose, the nurse discontinued the daily dose. After missing twenty-one scheduled daily doses
of Ativan over a period of seven days, Ms. Bennett suffered a grand mal seizure in her
bathroom at Casa Arena and fell, which resulted in a fracture to her right hip. Ms. Bennett
later died.

{3} Plaintiff, as husband and personal representative of Ms. Bennett, sued, asserting that
Ms. Bennett’s seizure was caused by the sudden and abrupt withdrawal of Ativan. He did
not sue the nurse who improperly transcribed the doctor’s order; he did not sue the nurse’s
employer, Casa Arena; and he did not sue the doctor who changed the prescription. He sued
NCS Healthcare of Albuquerque (NCS),1 which was under contract with Casa Arena to
provide pharmacy consultant services and pharmacy services to Casa Arena, and its
registered pharmacist, Doyle Potter (Defendant). Plaintiff brought claims against NCS and
Defendant for breach of contract, negligence, and negligence per se.

{4} Defendants filed motions for summary judgment. The district court initially denied
the motions but then reconsidered and granted summary judgment in favor of Defendants
on all of Plaintiff’s claims. Plaintiff appeals, and we affirm. In our analysis of the issues,
we discuss additional facts as necessary.

¹Plaintiff actually sued Omnicare Pharmacy of New Mexico, as the successor
corporation of Sunscript Pharmacy Corporation. Sunscript Pharmacy Corporation is now
known as NCS Healthcare Albuquerque (NCS). After the suit was filed, the parties filed a
joint pleading stating that NCS Healthcare of New Mexico, Inc. a/k/a NCS Healthcare
Albuquerque and Doyle Potter are the proper Defendants.

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DISCUSSION

The District Court’s Reconsideration of Defendants’ Motion for Summary Judgment

{5} As an initial matter, we address Plaintiff’s argument that the district court erred in
reconsidering Defendants’ previously denied motions for summary judgment. The denial
of a summary judgment motion is an interlocutory order and may be reconsidered by the
district court at any time before final judgment. Tabet Lumber Co. v. Romero, 117 N.M.
429, 431, 872 P.2d 847, 849 (1994). Further, “[i]t is permissible to renew motions for
summary judgment previously denied.” Cordova v. City of Albuquerque, 86 N.M. 697, 705,
526 P.2d 1290, 1298 (Ct. App. 1974). To the extent Plaintiff suggests that the district court
must provide a rationale for reconsidering its order, Plaintiff has failed to cite any rule or
case which requires the district court to state the basis for reconsidering its denial of a
motion for summary judgment. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
1329, 1330 (1984) (explaining that issues raised on appeal that are unsupported by legal
authority will not be reviewed on appeal). Further, while it is certainly preferable to know
the district court’s basis for granting or denying a motion for summary judgment, there is no
requirement that the district court state its reasons beyond a statement that no genuine issues
of material fact exist, and a specification of the ground upon which summary judgment has
been granted if alternative grounds seeking summary judgment have been presented. Skarda
v. Skarda, 87 N.M. 497, 499-500, 536 P.2d 257, 259-60 (1975); Rule 1-056(C) NMRA.

{6} Thus, we conclude that the district court did not err in reconsidering Defendants’
previously denied motions for summary judgment, and we proceed to determine whether
summary judgment was properly granted on the merits.

Standard of Review

{7} “Summary judgment is appropriate where there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc.,
1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal from the grant of summary
judgment, we ordinarily review the whole record in the light most favorable to the party
opposing summary judgment to determine if there is any evidence that places a genuine issue
of material fact in dispute.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-
NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of fact are
in dispute and an appeal presents only a question of law, we apply de novo review and are
not required to view the appeal in the light most favorable to the party opposing summary
judgment.” Id.

{8} The party moving for summary judgment has the burden of establishing a prima facie
case for summary judgment by presenting “such evidence as is sufficient in law to raise a
presumption of fact or establish the fact in question unless rebutted.” Romero v. Philip
Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. The burden then “shifts
to the non-movant to demonstrate the existence of specific evidentiary facts which would

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require trial on the merits.” Id. (internal quotation marks and citation omitted). “When a
motion for summary judgment is made and supported . . . an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue for
trial.” Rule 1-056(E).

Breach of Contract Claims

{9} NCS and Casa Arena entered into two contracts, a pharmacy consultant agreement
in which NCS agreed “to be responsible for the general supervision of the pharmaceutical
products and pharmacy services provided” to Casa Arena and a pharmacy services
agreement that relates to the purchase of pharmacy products and services. Plaintiff contends
that NCS violated these contracts in various ways, causing Ms. Bennett’s injuries and
damages. Plaintiff asserts that although Ms. Bennett was not a party to the contracts, the
breach of contract claims survive because NCS and Casa Arena intended Casa Arena
residents, including Ms. Bennett, to be third-party beneficiaries of the contracts. Plaintiff
bases his argument on the fact that performance of the contracts results in benefits to Casa
Arena residents. Conversely, Defendants argue that the contracts in plain language clearly
and unambiguously express an intent to exclude any rights in third parties. Defendants
specifically point to a clause in both agreements that states: “Nothing in this Agreement is
intended nor will be deemed to confer any benefits on any third party.” We therefore
proceed to determine whether Ms. Bennett is a third-party beneficiary of the contracts.

{10} Generally, “[o]ne who is not a party to a contract cannot sue to enforce it.” Casias
v. Cont’l Cas. Co., 1998-NMCA-083, ¶ 11, 125 N.M. 297, 960 P.2d 839. However, “[a]
third-party may have an enforceable right against an actual party to a contract if the third-
party is a beneficiary of the contract.” Callahan v. N.M. Fed’n of Teachers-TVI, 2006-
NMSC-010, ¶ 20, 139 N.M. 201, 131 P.3d 51. There are two classes of potential
beneficiaries to a contract, intended and incidental. Tarin’s, Inc. v. Tinley, 2000-NMCA-
048, ¶ 13, 129 N.M. 185, 3 P.3d 680. Only an intended beneficiary has a right to enforce a
contract to which he is not a party. Id. The determination of whether a party is an intended
beneficiary depends on the intent of the parties in making the contract. Id. Intent to benefit
a third party “must appear either from the contract itself or from some evidence that the
person claiming to be a third party beneficiary is an intended beneficiary.” Valdez v.
Cillessen & Son, Inc., 105 N.M. 575, 581, 734 P.2d 1258, 1264 (1987). Permian Basin Inv.
Corp. v. Lloyd, 63 N.M. 1, 7-8, 312 P.2d 533, 537 (1957). Incidental beneficiaries, on the
other hand, are those who may derive incidental benefits from the performance of the
contract but who were not intended to have rights to enforce it. Plaintiff contends that there
are ambiguities in the contracts concerning whether the residents are third-party
beneficiaries, and that the district court should have considered extrinsic evidence to
determine whether such ambiguities existed. We take each argument in turn.

A. Viewing the Contract as a Harmonious Whole

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{11} Plaintiff argues that when viewed as a harmonious whole, the contracts between NCS
and Casa Arena evidence an intent to benefit Casa Arena residents. Plaintiff argues that
despite the third-party exclusionary clauses, the parties’ intent is evidenced by benefits to
Casa Arena residents which result from performance of the contracts. Thus, Plaintiff
contends, the contracts are ambiguous as to whether the third-party exclusionary clauses
include Casa Arena residents.

{12} Courts view the entire contract to determine if there is an ambiguity. Heye v. Am.
Golf Corp., 2003-NMCA-138, ¶ 14, 134 N.M. 558, 80 P.3d 495. A contract is ambiguous
if different sections conflict or if the language of the contract is capable of more than one
meaning. Id. We review issues of contract interpretation de novo. See Cordova v. Bd. of
Cnty. Comm’rs of Valencia Cnty., 2010-NMCA-039, ¶ 5, 148 N.M. 460, 237 P.3d 762, cert.
denied, 2010-NMCERT-004, 148 N.M. 572, 240 P.3d 659.

{13} We have previously held that a clause in a contract specifically excluding third-party
beneficiaries clearly established that the parties did not intend to grant any third-party rights
under the contract. Cobos v. Doña Ana Cnty. Hous. Auth., 121 N.M. 20, 25, 908 P.2d 250,
255 (Ct. App. 1995), aff’d in part, rev’d in part on other grounds by 1998-NMSC-049, 126
N.M. 418, 970 P.2d 1143. In Cobos, a tenant residing in a low-income housing project was
killed by smoke inhalation as a result of the property failing to have smoke detectors. Id. at
21, 908 P.2d at 251. The estate argued that the deceased tenant was a third-party beneficiary
of the contract between the housing authority and the rental property owner and could
therefore sue for its breach. Id. at 24, 908 P.2d at 254. However, we concluded that the
tenant was not a third-party beneficiary on the grounds that a clause in the contract stated:
“Nothing in this Contract shall be construed as creating any right of the Family or other third
party . . . to enforce any provision of this Contract, or to assert any claim against HUD, the
PHA or the Owner under this Contract.” Id. at 25, 908 P.2d at 255 (internal quotation marks
omitted). We determined that, in spite of the fact that these types of housing assistance
contracts were generally intended to benefit tenants like the decedent, the limiting clause in
the contract established a clear intent to exclude any rights of a third party to enforce the
contract. Id. We stated, “It is fundamental that if two contracting parties expressly provide
that some third party who will be benefitted by performance shall have no legally
enforceable right, the courts should effectuate the expressed intent by denying the third party
any direct remedy.” Id. (internal quotation marks and citation omitted).

{14} We conclude that Cobos is dispositive. NCS and Casa Arena clearly stated their
intent in plain language within the contracts to deny any third-party beneficiary rights. Our
public policy is to give effect to the intention of the parties, and we do not rewrite parties’
agreements. Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, ¶ 23, 123 N.M. 526,
943 P.2d 560. The clear language excluding rights of third parties is not invalidated or made
ambiguous by the incidental benefits received by the residents of Casa Arena. See Flores
v. Baca, 117 N.M. 306, 310, 871 P.2d 962, 966 (1994) (“Contract liability to the promisee
or third-party beneficiary for personal injuries proximately caused by misfeasance is
dependent, therefore, upon the implied intent of the parties and upon the absence of an

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express contract provision to the contrary.”). We conclude that Ms. Bennett has no
contractual enforcement rights as a third-party beneficiary of the contracts between NCS and
Casa Arena.

{15} Plaintiff also relies on the termination clauses of the contracts to support the
argument that Ms. Bennett was a third-party beneficiary. The termination clauses of both
contracts recognize that a failure to perform by Defendant NCS to perform “creates
imminent jeopardy to patient safety” at Casa Arena. We conclude as a matter of law that this
recognition of the importance of proper pharmaceutical services is not sufficient by itself to
override the specific provisions denying third-party beneficiary status or to create a question
of fact about its efficacy.

B. Consideration of Extrinsic Evidence

{16} Plaintiff also argues that the district court erred in failing to consider extrinsic
evidence which creates a material issue of fact about whether NCS and Casa Arena intended
to grant the residents of Casa Arena third-party beneficiary rights. Plaintiff relies on Mark
V, Inc. v. Mellekas, 114 N.M. 778, 845 P.2d 1232 (1993), in arguing that the extrinsic
evidence should have been considered for this purpose.

{17} Here, however, Plaintiff does not point to the extrinsic evidence that might establish
an intent to benefit a third party to the contract, nor does Plaintiff point to any specific
ambiguity in the contract. We conclude that Plaintiff failed to submit admissible relevant
evidence to demonstrate an issue of material fact. The district court did not err in finding
the contracts unambiguous and in granting summary judgment without considering any
extrinsic evidence.

Negligence Claim

{18} Plaintiff also asserts that summary judgment was improperly granted on his
negligence and negligence per se claims. Specifically, Plaintiff contends that Defendants
breached common law and statutory and regulatory duties they owed to Ms. Bennett. “It is
axiomatic that a negligence action requires that there be a duty owed from the defendant to
the plaintiff; that based on a standard of reasonable care under the circumstances, the
defendant breached that duty; and that the breach was a cause in fact and proximate cause
of the plaintiff’s damages.” Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059,
¶ 5, 146 N.M. 520, 212 P.3d 408.

Common Law Negligence Claim

A. Duty

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{19} “Whether a duty exists is a question of law for the courts to decide[,]” which invokes
de novo review on appeal. Id. ¶ 6. Duty may be based on common law, statutory law, or
general negligence standard. Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-
NMCA-122, ¶ 30, 142 N.M. 583, 168 P.3d 155. “The question of the existence and scope
of a defendant’s duty of care is a legal question that depends on the nature of the [activity]
in question, the parties’ general relationship to the activity, and public policy
considerations.” Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶ 14, 148 N.M. 646,
241 P.3d 1086. “To impose a duty, a relationship must exist that legally obligates a
defendant to protect a plaintiff’s interest, and in the absence of such a relationship, there
exists no general duty to protect others from harm.” Estate of Haar v. Ulwelling, 2007-
NMCA-032, ¶ 15, 141 N.M. 252, 154 P.3d 67 (alteration, internal quotation marks, and
citation omitted). The case is before us on summary judgment. We therefore proceed to
examine the pertinent facts in greater detail to determine whether there are issues of fact
about whether Defendants breached a duty they owed to Ms. Bennett.

{20} When Ms. Bennett was admitted to Casa Arena on February 9, 2004, her doctor
prescribed daily doses of Ativan. Beginning in March 2004, the prescription ordered by her
doctor directed that she be administered Ativan three times per day, as well as on an as-
needed basis. Ms. Bennett’s doctor renewed the orders for all of her medications, including
the Ativan from that point forward, and from March 2004 until January 10, 2005, Ms.
Bennett was given Ativan three times per day, as scheduled, as well as additional doses of
Ativan on an as-needed basis.

{21} On January 10, 2005, a nurse employed by Casa Arena received a telephonic order
from Ms. Bennett’s doctor to discontinue the as-needed dose of Ativan. The nurse
improperly transcribed the order. Instead of discontinuing the Ativan as-needed order, the
nurse discontinued the daily Ativan dose. Beginning on January 10, 2005, until January 17,
2005, when she had the grand mal seizure and fell, Ms. Bennett did not receive the scheduled
routine doses of Ativan.

{22} No one from Casa Arena notified Defendant of the change in the prescription,
although the pharmacy services contract required Casa Arena to notify Defendant “daily of
any changes in resident medication upon receipt of physicians’ orders[.]” The pharmacy
consultant agreement and state regulations required Defendant to go to Casa Arena once per
month to review the medication regimens of each patient. See 16.19.4.11(B)(1)(h) NMAC
(08/27/1990) (amended 06/30/2006) (requiring that the consultant pharmacist “review [the]
drug regimen of each patient at least once a month”). Pursuant to these requirements,
Defendant reviewed Ms. Benentt’s medications on December 14, 2004, and wrote her doctor
a “note to attending physician” asking whether efforts could be made to discontinue her as-
needed orders for Ativan. Ms. Bennett’s doctor has no record of receiving this
recommendation. Defendant did not return to Casa Arena until January 18, 2005, (the day
after Ms. Bennett suffered the grand mal seizure and fell) to conduct his monthly review of
the patients’ medication regimens. Defendant did not receive communication from Casa

7
Arena from December 14, 2004, to January 18, 2005, and he was not aware of any changes
in Ms. Bennett’s medications.

{23} New Mexico courts have not yet ruled on the existence or scope of a duty of
consulting pharmacists to patients of a nursing facility. However, we need not reach that
issue today because Plaintiff presented no evidence that Defendant had a duty or ability to
control the nurse employed by Casa Arena when she made the transcription error or that
Defendant had a duty or opportunity to detect the transcription error when it was made.
Plaintiff presented no evidence that Defendant had a duty to monitor patients outside of the
monthly review. Defendant was required to be at Casa Arena once a month to do his monthly
review, and the error was made after Defendant performed his monthly review, and before
he returned the following month. Further, Defendant was not informed of the change to Ms.
Bennett’s prescription as required by the pharmacy services contract, with the result that he
was not able to take any appropriate corrective action.

{24} We conclude that there is no issue of material fact about whether Defendant violated
any duty to Ms. Bennett based on the common law or a general negligence standard.

B. Voluntary Assumption of Duty

{25} Nevertheless, Plaintiff argues Defendant engaged in conduct giving rise to a duty
under the “voluntary assumption of duty doctrine.” This doctrine declares that “[o]ne who
undertakes to act, even when under no obligation to do so, thereby becomes obligated to act
with reasonable care.” Sanderson v. Eckerd Corp., 780 So. 2d 930, 931-32 (Fla. Dist. Ct.
App. 2001) (quoting Union Park Mem’l Chapel v. Hutt, 670 So. 2d 64, 66-67 (Fla. 1996)).
Florida courts have concluded there is no reason why the voluntary assumption of a duty
doctrine could not be applied to a dispensing pharmacy in a proper case. Id. at 932; Estate
of Sharp v. Omnicare, Inc., 879 So. 2d 34, 37 (Fla. Dist. Ct. App. 2004). Plaintiff asks that
we adopt the doctrine based on the following facts.

{26} The pharmacy services agreement allows a patient to choose his or her own
pharmacy. On August 2, 2004, Plaintiff wrote a letter to Casa Arena “closing” Ms.
Bennett’s account with Defendants, and ordering, “Under no circumstances are there to be
any future drug ordering attempts to N.C.S.!” A copy of the letter was sent to NCS. As we
have already related, in connection with his monthly review of patient medications,
Defendant made a recommendation to Ms. Bennett’s doctor in a note dated December 14,
2004, that efforts be made to discontinue her as-needed orders for Ativan. Plaintiff contends
that because Defendant made the recommendation, he had a duty to Ms. Bennett under the
voluntary assumption of duty doctrine “because recommending modifications to Ms.
Bennett’s medication regime increased her risk of harm.” Assuming we were to adopt the
voluntary assumption of duty doctrine in relation to a consulting pharmacist, there is no
evidence in the record that the recommendation, not transmitted to the doctor, and not acted
upon, increased Ms. Bennett’s risk of harm.

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C. Special Relationship

{27} Plaintiff argues that Defendants owed a heightened duty to protect Ms. Bennett
because they had a special relationship with her. Under New Mexico jurisprudence, special
relationships “arise out of particular connections between the parties, give rise to a special
responsibility, and take the case out of the general rule [that there is no general duty to aid
or protect others].” Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 14, 140 N.M.
596, 145 P.3d 76. The special relationship case law in New Mexico typically involves
situations where there is a supervisory or treatment relationship, or where there is direct
custody and control over another. Id. “[I]n order to create a duty based on a special
relationship, the relationship must include the right or ability to control another’s conduct.”
Estate of Haar, 2007-NMCA-032, ¶ 23 (internal quotation marks and citation omitted).

{28} The facts in this case fail to establish the control and custody elements necessary to
establish a special relationship. A consultant pharmacist has neither the right nor ability to
dispense or change prescriptions without a physician’s order. See 16.19.11.8 NMAC(A)(2)
(12/15/2002) (requiring that “[a]ll medications administered to patients shall be by direct
order of a physician, or [a] licensed practitioner”). Further, facts must be presented
demonstrating sufficient contact with a patient on a regular basis to establish custody or
control over the patient. See Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 7, 126
N.M. 404, 970 P.2d 590 (holding that a doctor owed no duty to third parties injured by his
patient because the “taking of the drug outside of [the doctor’s] control made preventative
measures more difficult and reliance on professional judgment more remote”).

{29} Here, Defendant did not dispense or change Ms. Bennett’s medications, nor did he
have a contractual or other responsibility to monitor Ms. Bennett outside of a monthly
review of her medication records. See 16.19.4.11(B)(1)(h) NMAC. Such a relationship is
distinguishable from the typical cases establishing a special relationship due to custody,
control, or a treatment relationship. See City of Belen v. Harrell, 93 N.M. 601, 603, 603 P.2d
711, 713 (1979) (involving the imposition of a duty of a jailer to a prisoner because of
custody and control and knowledge of prisoner’s suicidal intent); Wilschinsky v. Medina, 108
N.M. 511, 512-13, 775 P.2d 713, 714-15 (1989) (holding that a doctor owed a duty to third
parties when a powerful medication was administered to a patient in his office who then
drove); Lester, 1998-NMSC-047, ¶ 6 (holding that a doctor who prescribed medication to
a patient had no duty to third parties injured by the patient in car accident when the
medication was taken out of the office). The evidence fails to establish that Defendants had
the requisite custody and control over Ms. Bennett, for us to conclude that the general
relationship between Defendants and Ms. Bennett gives rise to a special relationship,
resulting in a special duty to protect her from harm.

{30} For the foregoing reasons, we conclude that there are no issues of material fact, and
Defendants were entitled to summary judgment on Plaintiff’s claim that Defendants had a
special relationship with Ms. Bennett.

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Negligence Per Se

{31} Plaintiff argues that summary judgment was improper on his negligence per se claims
because there are issues of material fact about whether Defendants violated New Mexico
regulations regarding consultant pharmacists, the New Mexico Resident Abuse and Neglect
Act, and Federal Medicare statutes. We disagree.

{32} “[W]hen a statute imposes a specific requirement, there is an absolute duty to comply
with that requirement, and no inquiry is to be made whether the defendant acted as a
reasonably prudent man, or was in the exercise of ordinary care.” Heath v. La Mariana
Apartments, 2008-NMSC-017, ¶ 8, 143 N.M. 657, 180 P.3d 664 (internal quotation marks
and citation omitted). Thus, negligence per se consists of the following elements:

(1) There must be a statute which prescribes certain actions or defines a
standard of conduct, either explicitly or implicitly, (2) the defendant must
violate the statute, (3) the plaintiff must be in the class of persons sought to
be protected by the statute, and (4) the harm or injury to the plaintiff must
generally be of the type the [L]egislature through the statute sought to
prevent.

Alcantar v. Sanchez, 2011-NMCA-073, ¶ 34, 150 N.M. 146, 257 P.3d 966 (alteration in
original) (internal quotation marks and citation omitted). Further, the statute or regulation
at issue must “define with specificity what is reasonable in a particular circumstance, such
that the jury does not have to undertake that inquiry.” Heath, 2008-NMSC-017, ¶ 9. Thus,
the regulation or statute at issue must specify a duty that is distinguishable from the ordinary
standard of care. Abeita v. N. Rio Arriba Elec. Coop., 1997-NMCA-097, ¶ 21, 124 N.M. 97,
946 P.2d 1108. “[W]here duties are undefined, or defined only in abstract or general terms,
leaving to the jury the ascertainment and determination of reasonableness and correctness
of acts and conduct under the proven conditions and circumstances, the phrase negligence
per se has no application.” Id. (internal quotation marks and citation omitted).

{33} Plaintiff has failed to present for our consideration any statute, rule or regulation
directing with specificity that Defendants perform, or refrain from, actions or conduct to
prevent Casa Arena’s nurse from making the transcription error, to detect the transcription
error when it was made, or to be informed of a doctor’s change to a patient’s prescription at
the time it is communicated to the employee of a skilled nursing facility. Instead, the
regulations impose general duties, unrelated to the specific facts of this case.

{34} For example, Plaintiff asks us to consider a regulation that requires a consultant
pharmacist to have the duties and responsibilities to:

(2) Ensure that drugs are handled in the facility in which he/she
is the consultant pharmacist, in a manner that protect[s] the safety and
welfare of the patient.

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 (3) Set the policy and procedures in the facility as related to all
facits [sic] of drug handling and distribution;

....

(5) [Require the consulting pharmacist’s] primary goal and
objective shall be the health and safety of the patient, and he/she shall make
every effort to assure the maximum level of safety and efficacy in the
provision of pharmaceutical services.

16.19.4.11(A) NMAC. Plaintiff also cites a regulation requiring a pharmacy consultant
agreement to specify that the consultant pharmacist has responsibilities which include the
following (among others):

(c) Monitor on a routine basis all aspects of the total drug
distribution system–to be accomplished in a manner designed to monitor and
safeguard all areas of the drug distribution system.

....

(h) Make routine inspections of drug storage areas, patient health
records, and review drug regimen of each patient at least once a month[,
r]eport irregularities, contraindication, drug interactions, etc., to the medical
staff.

....

(j) Provide in-service training of staff personnel as outlined in the
procedures manual.

(k) Meet all other responsibilities of a consultant pharmacist as
set forth in the Board regulations and federal or state laws and which are
consistent with quality patient care.

16.19.14.11(B)(1) NMAC.

{35} Plaintiff argues that under these regulations, “Defendants had a duty to provide
consultation on all aspects of the provision of pharmacy services at Casa Arena and to make
every effort to assure the maximum level of safety and efficacy in the provision of
pharmaceutical services, and there are genuine disputes of material fact regarding whether
Defendants breached their duties and are liable for the death of Ms. Bennett.” Plaintiff’s
argument overlooks the fact that the majority of regulations are not sufficiently specific
under New Mexico standards to support a negligence per se claim in the factual setting
before us. The one specific requirement of the regulations requires inspection of drug

11
storage areas, health record and patient regimen “at least once a month.” This requirement
was echoed in the contracts between Casa Arena and NCS. Plaintiff has provided no facts
that this schedule was either inadequate or not met. Thus, Plaintiff has failed to provide any
basis to argue that a question of fact exists in this regard in any event.

{36} Plaintiff also asserts that the failure of Defendants to train the nurse who made the
transcription error was negligence per se. 16.19.4.11(B)(1)(j) NMAC states, “The consultant
pharmacist’s agreement with the facility shall include . . . [providing] in-service training of
staff personnel as outlined in the procedures manual.” The pharmacy consultant agreement
incorporates this requirement, which requires Defendants to provide “annual training.”
Assuming that this regulation is sufficiently specific to support a negligence per se claim,
Plaintiff has failed to make a showing that the regulatory requirement was violated.

{37} The nurse who incorrectly transcribed the prescription order was in orientation when
she received the call from Ms. Bennett’s doctor on January 10, 2005. However, there is no
evidence of when annual training was provided by Defendants, and where in that cycle the
nurse was hired. Because she was in orientation, the nurse had a preceptor who would teach
her and show her how to complete the form for a prescription change. Moreover, she
testified that Casa Arena had a policy and procedure for documenting telephonic orders and
that she followed the procedure in this case. Plaintiff suggests that there is a question about
whether the nurse’s preceptor was herself properly trained. However, we have not been
directed to any facts that support this suggestion.

{38} Plaintiff’s argument that there are issues of material fact about whether Defendants
violated the New Mexico Resident Abuse and Neglect Act, NMSA 1978, §§ 30-47-1 to -10
(1990, as amended through 2010), and federal statutes and regulations fails because Plaintiff
fails to cite to any evidence in the record that they were violated by Defendants.

{39} For all the reasons set forth above, we conclude that the district court properly
granted summary judgment on Plaintiff’s claims of negligence per se.

CONCLUSION

{40} The order of the district court granting summary judgment in favor of Defendants is
affirmed.

{41} IT IS SO ORDERED.

____________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

____________________________________

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MICHAEL D. BUSTAMANTE, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for Thompson v. Potter, No. 29,705

AE APPEAL AND ERROR
AE-SR Standard of Review

CP CIVIL PROCEDURE
CP-RS Reconsideration
PC-SJ Summary Judgment

CN CONTRACTS
CN-AM Ambiguous Contracts
CN-TB Third Party Beneficiary

NG NEGLIGENCE
NG-DU Duty
NG-NP Negligence Per Se
NG-NG Negligence, General

TR TORTS
TR-MM Medical Malpractice
TR-NG Negligence

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