Sanchez Ex Rel. Sanchez v. Wal-Mart

Cherry, J.,

with whom Saitta, J., agrees, dissenting:

I differ with my colleagues as to their resolution of this appeal. In particular, I conclude that the district court erred when it granted the pharmacies’ motions to dismiss because the appellants have sufficiently stated common-law negligence and negligence per se claims that preclude dismissal. I therefore dissent.

DISCUSSION

Common-law negligence cause of action

The majority concludes that no special relationship exists to extend a duty of care from the pharmacies to the third-party appellants. I disagree with this conclusion. This court has recognized a special relationship between an innkeeper-guest, teacher-student, and employer-employee. See Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001). The relationship between a pharmacy and pharmacy customer should also be considered a special relationship. Thus, in my opinion, appellants’ allegations in their complaint are *830legally sufficient to constitute a common-law negligence cause of action.

Generally, a defendant does not have a duty to control another’s dangerous conduct or to warn others when dangerous conduct arises. Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). But an exception to this general rule occurs when a special relationship exists between the defendant and the actor who allegedly caused the injury. Id. If a special relationship exists, the defendant has a duty to take measures to protect foreseeable victims from foreseeable harm. See Elko Enterprises v. Broyles, 105 Nev. 562, 565-66, 779 P.2d 961, 964 (1989); El Dorado Hotel v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). Here, contrary to the majority’s position, I determine that the pharmacies owed appellants a duty of care to, among other things, investigate the validity of Copening’s prescriptions or to refuse to fill her prescriptions, if warranted, based on the special relationship that exists between a pharmacist and pharmacy customer, together with the information distributed by the Task Force. While I conclude that sufficient information exists to reverse the district court’s dismissal of appellants’ common-law negligence claim, because the underlying proceedings are at an early stage of the litigation, there also remain unanswered questions relating to foreseeability that justify remanding this appeal to the district court for further proceedings.

Special relationship element of common-law negligence cause of action

A pharmacist’s professional standards of care, considered with the notice contained in the Task Force letter, justifies extending the duty owed by the pharmacies under a common-law negligence cause of action to these appellants. Not only do pharmacists possess an expertise in the dispensation of prescription drugs, NRS 639.213; NRS 639.0124(4), as recognized by the majority, but pharmacists must ensure that the drugs sought by a customer are “dispensed only for medically necessary purposes and according to prevailing standards of care for practitioners practicing in the specialty claimed or practiced by the dispensing practitioner.” NAC 639.742(3)(h). Nevada’s Legislature has recognized that pharmacists are trained to recognize potential drug abuse based on the frequency of a drug’s refill and dosages. NRS 639.0124; NAC 639.707(4). Before filling a *831prescription, a pharmacist must review a customer’s records to determine the prescription’s therapeutic appropriateness by considering possible drug abuse, overuse of a particular drug, adverse side effects, or improper dosages or treatment durations. NAC 639.707(4). If a pharmacist reasonably believes that a prescription for a controlled substance was not issued in the normal course of a professional’s practice, a pharmacist is prohibited from filling the prescription. NRS 453.381(4).

Based on a pharmacist’s professional standards of care, the Legislature contemplated that pharmacists may be subject to civil liability for improperly dispensing prescription drugs when it enacted NRS 453.256(6). This statute provides that civil liability cannot be imposed upon a pharmacist if the pharmacist acts in “good faith in reliance on a reasonable belief that an order purporting to be a prescription was issued by a practitioner in the usual course of professional treatment,” implying that civil liability could arise if the good faith requirement is not met. See also International Game Tech. v. Dist. Ct., 122 Nev. 132, 154, 127 P.3d 1088, 1103 (2006) (noting that this court presumes that when the Legislature enacts a statute it does so “with full knowledge of existing statutes relating to the same subject” (internal quotes and citation omitted)). Consequently, the special relationship between a pharmacist and pharmacy customer, entails more than blindly filling prescriptions, and thus, a special relationship is created between a pharmacist and customer when a prescription is filled.

Generally, the relationship between a customer and pharmacist does not establish a duty in favor of third parties. This case, however, includes a component that the majority ignores — notice. The actual notice to the pharmacies contained in the Task Force letter (which, according to the complaint, was sent to and received by all the pharmacies in this action), together with a pharmacist’s professional standard of care, noted above, clearly refutes the majority’s conclusion that no special relationship exists to justify extending a duty of care owed by the pharmacies to the appellants.

Appellants’ second amended complaint alleges that the pharmacies that received the Task Force letter outlining Copening’s prescription-filling activities were informed that Copening had received 4,500 hydrocodone pills within a 12-month period by having numerous prescriptions filled at 13 different pharmacies.1 The complaint also contends that despite receiving the Task Force letter the pharmacies continued to fill narcotic or SOMA prescriptions for *832Copening.2 It is unclear why Copening was filling prescriptions for this amount of narcotic medication within a year’s time. But the pharmacies had, at a minimum, inquiry notice that continuing to fill Copening’s prescriptions for hydrocodone or SOMA could result in harm to herself or others. See Ogle v. Salamatof Native Ass’n, Inc., 906 F. Supp. 1321, 1326 (D. Alaska 1995) (explaining that inquiry notice exists when one has knowledge of facts that would lead a reasonable and prudent person using ordinary care to make further inquiries).

Here, the pharmacists had a duty to review Copening’s prescription records, including giving consideration to the Task Force letter, before filling her next prescription. In light of the Task Force letter identifying Copening’s prescription history, the pharmacies were required to evaluate the prescription’s therapeutic appropriateness (considering possible drug abuse, overuse of a particular drug, or improper dosages or treatment durations). NAC 639.707(4). In their professional analysis, if the pharmacists reasonably believed that Copening’s prescriptions for hydrocodone were not issued in the normal course of her physician’s practice, they were prohibited from filling the prescriptions. NAC 639.742(3)(h); NRS 453.381(4). Thus, the pharmacists owed appellants a duty to exercise that standard of care that is required of the pharmacy profession in the same or similar circumstances. See Dooley v. Everett, 805 S.W.2d 380 (Tenn. Ct. App. 1990); see also Pittman v. Upjohn Co., 890 S.W.2d 425, 434 (Tenn. 1994) (suggesting that because a pharmacy has a duty to do more than fill a customer’s prescription correctly, a pharmacy may owe a duty to a noncustomer).

For these reasons, I conclude that the first element to the common-law exception for a duty of care has been established. The next issue presented is whether the harm created by the pharmacies’ dispensation of the drugs to Copening was foreseeable.

Foreseeability element of common-law negligence cause of action

This court has held that “[a] negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act.” Taylor v. Silva, 96 Nev. 738, 741, 615 P,2d 970, 971 (1980). A defendant’s liability can be extinguished when an unforeseeable intervening cause occurs between a defendant’s negligence and a plaintiff’s injury. El Dorado Hotel v. Brown, 100 Nev. 622, *833628-29, 691 P.2d 436, 441 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). But when a ‘ ‘third party’s intervening intentional act is reasonably foreseeable, a negligent defendant is not relieved of liability.” Id. at 629, 691 P.2d at 441. The issue of foreseeability, thus, can be a mixed question of law and fact. Elko Enterprises v. Broyles, 105 Nev. 562, 566, 779 P.2d 961, 964 (1989). Because the majority concludes that no special relationship exists between the pharmacies and third-party appellants to establish a duty of care owed to appellants, they decline to reach the foreseeability issue. As noted above, however, I conclude that the relationship between the pharmacy and its customer is sufficient to establish the first duty element and that sufficient allegations were pleaded by appellants to address the foreseeability element that precluded the district court from dismissing the common-law negligence cause of action.

According to appellants’ second amended complaint, the Task Force notified the pharmacies that Copening was potentially abusing drugs. The Task Force informed each pharmacy that Copening went, during a 12-month period, to multiple pharmacies to fill her prescriptions. According to appellants, in the months before the accident, the pharmacies continued to fill Copening’s prescriptions for hydrocodone and SOMA and that the amount of prescriptions filled for Copening provided her with at least 25 pills a day. Why Copening obtained this amount of a narcotic prescription in a 12-month period is not clear, but it may involve misuse of prescription drugs. In my view, these are reasonable inferences that could be drawn from the facts alleged in the appellants’ complaint, and the district court was required to accept them as true. See Malfabon v. Garcia, 111 Nev. 793, 796, 898 P.2d 107, 108 (1995) (providing that, in the context of a motion to dismiss under NRCP 12(b)(5), the plaintiff’s allegations are taken as true and every reasonable inference is resolved in plaintiff’s favor). Thus, it may have been reasonably foreseeable that Copening could not be expected to take the medication as prescribed and would drive while under the prescription drug’s influence. A natural consequence of those combined actions was that Copening could cause harm to herself or others.

Although the appellants’ allegations are not conclusive of the pharmacies’ potential liability, appellants were not required to prove their claim against the pharmacies while defending a motion to dismiss. See Malfabon, 111 Nev. at 796, 898 P.2d at 108. At a minimum, questions of fact remain as to whether the pharmacies had actual or inquiry notice that Copening was potentially abusing drugs and that she was purportedly pharmacy shopping. Thus, I conclude that sufficient allegations, raised in appellants’ pleadings, regarding foreseeability exist and coupled with my determination that a special relationship, together with the actual notice received by the phar*834macies, exists to support imposing a duty on the pharmacies for appellants’ benefit. I would reverse and remand this issue to the district court for further proceedings.

Negligence per se cause of action that precludes dismissal

The majority concludes that a negligence per se claim is unavailable to appellants because the statutes and regulations relied on by appellants were not intended for the general public’s protection or to protect against any injury that third parties may sustain. I disagree.

A negligence per se claim is available when a defendant violates a statute that is designed to protect others against the type of injury that was incurred. Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997). The Legislature has recognized that pharmacology affects public safety and welfare. NRS 639.213. Consequently, the Legislature regulates the profession, including in what manner and when controlled substances may be dispensed. See NRS 639.2171; NRS 639.0124; NRS 453.381. To that end, the Legislature directed the Board of Pharmacy to adopt regulations “as are necessary for the protection of the public, appertaining to the practice of pharmacy.” NRS 639.070(1)(a).

Nevada law requires pharmacists to review customers’ records before filling prescriptions to determine prescriptions’ therapeutic appropriateness. NAC 639.707(4). Pharmacists must ensure that the substance is being dispensed solely for medically necessary purposes and in accordance with prevailing professional standards of care. NAC 639.742(3)(h).

Based on the enactment of these statutory and regulatory provisions, it is apparent to me that the Legislature intended to prevent pharmacy shopping and the overfilling of certain controlled substances, and ultimately, to protect the general public from prescription-drug abuse and its effects. The abuse of either hydrocodone or SOMA can impair one’s driving ability. In my opinion, motorists, like appellants, who are injured by an individual who is driving under the influence of prescription drugs are in the class of persons that the Legislature intended to protect and the injury is a type that the statutes and regulations intended to prevent. Having reached this conclusion, I would reverse the district court’s dismissal of appellants’ negligence per se claim and remand this matter to the district court for additional proceedings.

CONCLUSION

In my view, the appellants’ complaint sufficiently states a common-law negligence cause of action because the special relationship and foreseeability elements to create an affirmative duty on the pharmacies to act for the appellants’ benefit have been ade*835quately pleaded. The appellants’ negligence per se claim should similarly not have been dismissed under NRCP 12(b)(5), as the elements of that claim have also been met. In light of the above, I would reverse the district court’s order and remand this matter to the district court to allow appellants’ claims to proceed against those pharmacies that had actual or inquiry notice of the driver’s prescription-filling activities. For these reasons, I dissent.

Hydrocodone is a narcotic pain reliever used for the relief of moderate to moderately severe pain and has a high potential for abuse. Physicians’ Desk Reference 3143-44 (63d ed. 2009); NRS 453.176; NAC 453.520. It may impair one’s mental or physical abilities required for the performance of potentially hazardous tasks, such as driving a car. Physicians’ Desk Reference 3143-44 (63d ed. 2009).

SOMA, also known as carisoprodol, is used for the relief of acute pain. Physicians’ Desk Reference 1931 (63d ed. 2009). It is recommended that it only be used for “acute treatment periods up to two or three weeks,” and it also may impair one’s ability to operate a motor vehicle. Id. According to appellants’ complaint, the combination of hydrocodone and SOMA is known as “The Vegas Cocktail.”