concurring in part and dissenting in part:
¶ 1 I concur in vacating the trial court judgment but dissent as to the grounds stated by Majority, as set forth herein:
¶ 2 Subsection 37(e) is a statutory recognition of the existence of a duty on the part of the pharmacist. The first question for determination is: Does a duty, recognized by law, exist on the part of Westminster, which requires that it conform to a standard of conduct so as to protect buyers of narcotic prescriptions, like Carista, against an unreasonable risk from an improper or dangerous use of the prescription? As stated in McClure v. Sunshine Furniture, 2012 OK CIV APP 67, ¶¶ 22-24, 283 P.3d 323, 328-29:
A duty is a threshold question in any negligence case. Whether a duty exists presents a question of law which depends on the relationship between the parties and the general risks involved in the common undertaking. Wofford v. Eastern State Hospital, 1990 OK 77, ¶ 8, 795 F.2d 516, 518.
Oklahoma courts have recognized that the existence of a duty depends on the relationship between the parties and the general risks involved in the common undertaking. See Union Bank of Tuscon [Tucson] v. Griffin, 771 P.2d 219 (Okla. 1989). Whether a defendant stands in such relationship to a plaintiff that the law will impose upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff is a question for the court. Id. ‘Duty of care is not a concept that arises only by statute ... Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury.’ Union Bank, 771 P.2d at 222.
Professor Prosser had this to say: The assertion that liability must ... be denied because defendant bears no ‘duty’ to plaintiff begs the essential question— whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct.... [Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. (Prosser, Law on Torts [3d ed. 1964] at pp. 332-333.)
Wofford, 1990 OK 77 at ¶ 10, 795 P.2d at 519.
The most important of those policy considerations in the determination of whether a duty exits is foreseeability. The general rule is that a “defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.” Wofford, 1990 OK 77 at ¶ 11, 795 P.2d at 519. Foreseeability as an element of duty establishes a “zone of risk,” that is, whether the conduct “creates a generalized and foreseeable risk of harming others.” Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 8, 913 P.2d 1318, 1321; McCain v. Florida Power Corporation, 593 So.2d 500, 502-503 (Fla. 1992). When a defendant’s conduct “creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to .lessen the risk or see that sufficient precautions are taken to protect others from harm that the risk imposes.” McClain, 593 So.2d at 503.
The foreseeability component of duty is different than the foreseeability element of proximate cause. The latter is concerned specifically with whether and to what extent the defendant’s conduct foreseeably and substantially caused the injury that occurred. Delbrel, 1996 OK 36 at ¶ 12, 913 P.2d at 1322; McCain, 593 So.2d at 502-503.
¶ 3 Thus, the Subsection 37(e) definition of what constitutes a component of the pharmacist’s practice is a statutory statement of duty. However, the Opinion narrowly interprets Subsection 37(e) as being only a provision defining what may be regulated and not what may be considered as a duty for tort law purposes. The case of Pharmcare Oklahoma, Inc. v. State of Oklahoma Health Care Authority, 2007 OK CIV APP 5, 152 P.3d 267 (case dealing with recoupment of funds paid *261under the Oklahoma Medicaid program), suggests otherwise.
¶4 In Pharmcare, at paragraphs 26 and following, the Court engaged in an analysis of whether a pharmacist had a duty or responsibility to determine whether a particular medication was medically necessary. In concluding that the pharmacist did not have that duty, the Court found that the pharmacist’s duty was defined (and limited) under the Pharmacy Act, citing Subsection 37. Thus, the Pharmcare Opinion states, “The Pharmacy Act provides -the scope of a pharmacist’s practice. The ‘practice of pharmacy' includes (Subsection 37).... A pharmacist’s duty to that same patient is clearly defined and limited under the Pharmacy Act. These duties include accurately filling and dispensing prescriptions, advising by counseling -or providing other information.” Pharmcare Oklahoma, Inc., 2007 OK CIV APP 5 ¶¶ 28, 30, 152 P.3d at 273.
¶ 5 I would reverse the trial court’s dismissal of this action.