Oakey v. May Maple Pharmacy, Inc.
34,914
| N.M. Ct. App. | Apr 13, 2017Background
- Tawana Lucero (19) died of multiple drug toxicity in 2009; toxicology showed Oxycodone, Oxymorphone, and Alprazolam.
- Dr. Tyson (Doctor On Call) prescribed Oxycodone/Oxycontin (Schedule II) and Alprazolam (Schedule IV); May Maple Pharmacy filled prescriptions May–Nov 2009.
- Pharmacy filled multiple "early" fills of Oxycontin (2–23 days early on several occasions); at least once Lucero paid large cash sums (e.g., $1,107 for 90 pills).
- Plaintiff (personal representative) sued Pharmacy for negligence and negligence per se, alleging Pharmacy should have recognized/acted on signs of abuse/diversion and statutory/regulatory duties to investigate.
- Pharmacy moved for summary judgment arguing its duty was satisfied by accurately filling facially valid prescriptions; it presented an expert (Dr. Lee) offering a clerical-accuracy standard.
- Plaintiff’s expert (Dr. O’Donnell) opined pharmacists must consider indicators of abuse/diversion, consult prescribers, and comply with NM and federal pharmacy/controlled-substance rules; district court granted summary judgment for Pharmacy; appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable standard of care for retail pharmacists filling controlled-substance prescriptions | Pharmacists must do more than clerical filling when signs of abuse/diversion exist; statutes/regulations and professional standards require inquiry (PMP review, prescriber contact, counseling). | A pharmacist's duty is satisfied by accurately dispensing facially valid prescriptions absent personal knowledge that a particular patient will be harmed; pharmacists should not second-guess prescribers. | Reversed: Pharmacy did not establish as a matter of law that the clerical-accuracy standard is the applicable standard; statutes/regulations must be considered. |
| Whether Pharmacy made a prima facie showing of compliance with the standard of care | Pharmacy failed to show it complied with standards that account for regulatory duties and red flags (e.g., early fills, cash payments). | Pharmacy argued Dr. Lee showed prescriptions were valid and properly filled. | Reversed: Dr. Lee’s affidavit was insufficient because it did not account for applicable statutes/regulations; genuine factual disputes exist. |
| Whether conflicting expert affidavits create a triable issue | Dr. O’Donnell’s affidavit, though imperfect, raised factual disputes about standard and breach based on records and regulatory duties. | Pharmacy argued plaintiff’s expert did not adequately rebut Dr. Lee. | Held for Plaintiff on this point: plaintiff’s expert created a genuine issue of material fact; summary judgment improper. |
| Dismissal of negligence per se claim | NM statutes/regulations set specific, enforceable duties distinguishable from common-law negligence; Pharmacy failed to address negligence per se in its motion. | Pharmacy did not brief or cite statutes/regulations in the motion and relied on the accuracy standard. | Reversed: district court did not rule on negligence per se; dismissal improper because Pharmacy did not demonstrate entitlement to judgment on that claim. |
Key Cases Cited
- Brown v. Taylor, 901 P.2d 720 (N.M. 1995) (moving party must make prima facie showing before non‑moving party must respond)
- Garcia‑Montoya v. State Treasurer’s Office, 16 P.3d 1084 (N.M. 2001) (if slightest doubt as to material factual issues, deny summary judgment; remand to develop issues)
- Spencer v. Health Force, Inc., 107 P.3d 504 (N.M. 2005) (elements of negligence; duty, breach, causation)
- Lasley v. Shrake’s Country Club Pharm., Inc., 880 P.2d 1129 (Ariz. Ct. App. 1994) (pharmacist standard may include duties beyond mere accuracy; factual issues for jury)
- Horner v. Spalitto, 1 S.W.3d 519 (Mo. Ct. App. 1999) (summary judgment improper where record insufficient to determine pharmacist’s duty and conduct)
- Oleckna v. Daytona Discount Pharmacy, 162 So. 3d 178 (Fla. Dist. Ct. App. 2015) (refused to treat pharmacist as mere order‑filler where early fills of controlled substances raised suspicion; statutes/regulations informative)