In a lawsuit brought on behalf of a 19-year-old who died from overdosing on physician-prescribed medications, the New Mexico Court of Appeals addressed whether the pharmacy was liable for negligence and negligence pr se. At issue was the standard of care, specifically, the standard owed by a pharmacist when dispensing medications to patients. While the lower court had granted the Pharmacy’s motion for summary judgment, the appellate court reversed.The victim of the overdose had multiple drugs in her system, including Oxycodone, Oxymorphone, and Alprazolam. She had apparently repeatedly requested high dosages of Schedule II opioids and taken them with Schedule IV benzodiazepines. Her prescriptions were allegedly intended to treat her pain and anxiety.
The plaintiff in this case, a personal representative of the deceased woman, brought a claim for malpractice, wrongful death, negligence, and other causes of action against the prescribing doctor. The complaint was amended to assert claims against the Pharmacy for negligence and negligence per se. Negligence was alleged based on a breached duty of care to apply knowledge used by well-qualified pharmacists, and negligence per se was centered on the allegation that the Pharmacy departed from the standard of care of a reasonably trained pharmacist.
The Pharmacy moved for summary judgment, on the ground that a pharmacist who fills a prescription accurately is not liable for resulting injuries unless that pharmacist knew the customer would be harmed. In support, the Pharmacy relied on an expert who set forth the standard of care for pharmacists filling facially valid prescriptions. The plaintiff’s expert stated that when prescriptions indicate “OK to fill early,” as they did in this case, they were illegal because they were for Schedule II controlled substances. The court stated that the plaintiff’s expert fell short and had not set forth a standard of care. Accordingly, the court entered an order dismissing the Pharmacy, granting the summary judgment. The plaintiff appealed.
The appellate court stated that this case involved a question of conduct by pharmacies that fill prescriptions for controlled substances that have a potential for addiction and abuse, including Oxycodone and Oxycontin. The court also noted that in light of the “opioid crisis,” the question of duty is pertinent and had not been addressed by the court below.
First, the court turned to the elements of a negligence claim, which require showing a duty was owed by the defendant to the victim, that duty was breached, and the breach was a proximate cause and cause in fact of damages. Negligence per se, as a separate claim, rests upon a statute that specifies a duty, separate from the ordinary standard of care. The court also noted that “duty” and “standard of care” are not the same.
Legally, a defendant may have a duty to conform their conduct to a standard of care. Professionals have a duty, set by law, to apply the knowledge and care of other qualified professionals. In this case, the court stated the issue was whether the pharmacist complied with the standard of care in the specific circumstances presented here. While the Pharmacy and the plaintiff referred to a “duty of care,” the Pharmacy contended that it was entitled to summary judgment because its conduct met the professional standard of care for retail pharmacists. In support, they relied on the affidavit of their expert.
The standard advanced by the Pharmacy’s expert was that of a clerical accuracy standard. This means a pharmacist must accurately fill a prescription, unless it is facially invalid. The plaintiff argued that when filling prescriptions for schedule II controlled substances, there is a higher duty of care.
Next, the appellate court stated the Pharmacy did not show that the clerical accuracy standard was the proper standard of care or that the Pharmacy was compliant with this standard. The Pharmacy stated that a pharmacist has no duty to warn of potential hazards and is not liable for harm to patients from consuming drugs, provided the pharmacist accurately dispenses the medication. In his affidavit, the expert did not cite statutes or regulations that supported this clerical accuracy standard.
The appellate court stated that New Mexico regulates the practice of pharmacies, and the Pharmacy Act and the New Mexico Board of Pharmacies provide rules and regulations for the profession. As one of the specific responsibilities set forth under New Mexico law, pharmacists must review patient profiles before dispensing medications and identify potential issues, which include “misuse” and “incorrect drug dosage.”
In this case, neither the expert’s affidavit nor the motion for summary judgment mentioned any statutes. The appellate court stated it is not their role to determine professional standards of care, but a party cannot establish such a standard by relying on an affidavit that does not account for law specific to the professional or particular circumstances. Here, the court also stated there were policy concerns with requiring only that a pharmacist accurately fill an apparently valid prescription, particularly when there are requests for high dosages of Schedule II opioids with Schedule IV benzodiazepines.
The Court stated that the affidavit set forth by the Pharmacy did not satisfy their burden of showing a prima facie case of entitlement to judgment as a matter of law. Competent evidence in the form of statutes and regulations must be presented, showing that the Pharmacy met the professional responsibilities of pharmacists filling prescriptions for controlled substances. Additionally, based on the record, the court stated there were genuine disputes of material fact surrounding the conduct required of a pharmacist in the specific circumstances.
Regarding the negligence per se claim, the court stated that there must be a regulation or statute at issue that sets forth a specific duty. In their summary judgment motion, the Pharmacy did not cite or discuss any statutes or regulations. The Pharmacy was not entitled to summary judgment on the claim of negligence per se.
At the Law Office of Matthew Vance, injured individuals in Albuquerque and elsewhere in New Mexico receive effective legal advocacy as they pursue their right to compensation from at-fault parties. As a New Mexico personal injury lawyer, Matt Vance helps accident victims and their families. Contact our office for a free, no-obligation consultation by calling (505) 242-6267 or using our online form.
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