CARISTA v. VALUCK
394 P.3d 253
| Okla. Civ. App. | 2016Background
- Decedent allegedly died from an overdose of prescription painkillers; his sister Diane Carista sued Westminster Family Drug (Pharmacy) for wrongful death.
- Carista's petition alleged a health care provider–patient relationship with Pharmacy and asserted broad pharmacist duties: reviewing prescription history, contacting prescribers, monitoring, counseling about drug interactions/risks, supervising and credentialing staff, and considering patient history of substance abuse and hypertension.
- Pharmacy moved to dismiss under 12 O.S. § 2012(B)(6), arguing no statutory or common-law duty exists as alleged; the district court dismissed Pharmacy with prejudice.
- The trial- and appellate-level issue centers on whether pharmacists owe the expanded duties Carista pleads or are protected by the learned intermediary doctrine and existing statutory/regulatory framework.
- Carista submitted an unsworn Pharm.D. report in opposition to dismissal but did not move to amend her petition or add facts supporting a recognized pharmacist duty.
- The appellate court concluded Carista's pleading failed to state a cognizable claim but held the court should have allowed her leave to amend under 12 O.S. § 2012(G) to attempt to plead a recognized duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pharmacists owe a tort duty to monitor, counsel, or second-guess prescribers (beyond filling and dispensing) | Carista: Pharmacy has duties under the Pharmacy Act, OAC, and DEA guidance to interpret/evaluate prescriptions and counsel patients about hazards, creating tort duties | Pharmacy: Learned intermediary doctrine and existing law limit pharmacists to filling/dispensing/limited counseling; no duty to second-guess physicians or broadly monitor patient history | Court: Petition fails to plead a recognized duty; learned intermediary doctrine limits pharmacist liability except for facially unreasonable prescriptions or clear contraindications; dismissal appropriate as pled but plaintiff must be given leave to amend |
| Whether regulatory texts (Pharmacy Act; OAC; DEA manual) create a new tort duty | Carista: Definitions and regs impose professional duties that translate into tort duties | Pharmacy: Regulatory provisions govern licensing and professional discipline, not new common-law tort duties; DEA manual not in record and not proper source to create tort duty | Court: Definitions in Pharmacy Act and OAC primarily define regulated activities and Board authority; the court will not judicially create a new tort duty from the cited federal publication or regulatory provisions |
| Whether unsworn expert report converted the motion to dismiss into a summary-judgment matter | Carista: Offered Pharm.D. report to contest factual sufficiency | Pharmacy: Motion remained a Rule 12(B)(6) challenge; extrinsic unsworn material is irrelevant | Court: The unsworn report was irrelevant to the dismissal analysis; matter was not converted to summary judgment |
| Proper remedy after concluding petition fails to state a claim | Carista: (implicitly) dismissal should not bar further amendment | Pharmacy: dismissal proper | Court: Vacated dismissal with prejudice; remanded and instructed district court to dismiss with leave to amend and set reasonable time under 12 O.S. § 2012(G) |
Key Cases Cited
- McKee v. Moore, 648 P.2d 21 (Okla. 1982) (articulates learned intermediary doctrine regarding manufacturer/physician/patient warning duties)
- Pharmcare Oklahoma, Inc. v. State Health Care Auth., 152 P.3d 267 (Okla. Civ. App. 2007) (defines pharmacist duties under Pharmacy Act as limited to filling/dispensing, counseling, and services necessary for pharmaceutical care)
- Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158 (Okla. 2009) (standard of review on motion to dismiss — accept plaintiff’s well-pleaded facts as true)
- Wofford v. Eastern State Hospital, 795 P.2d 516 (Okla. 1990) (duty analysis depends on relationship and foreseeability; duty is question of law)
- Lowery v. Echostar Satellite Corp., 160 P.3d 959 (Okla. 2007) (if no legal duty exists, negligence liability cannot attach)