399 P.3d 939
N.M. Ct. App.2017Background
- Tawana Lucero, 19, died of multiple drug toxicity after taking physician-prescribed Oxycodone/Oxycontin (Schedule II) and Alprazolam (Schedule IV); toxicology showed high opioid levels.
- Dr. Tyson of Doctor On Call prescribed the medications; May Maple Pharmacy dispensed them from May–Nov 2009, including multiple "early" fills and at least one large cash purchase ($1,107 for 90 Oxycontin 80 mg).
- Plaintiff (personal representative) sued the Pharmacy for negligence and negligence per se, alleging the Pharmacy dispensed excessive quantities of controlled substances and violated pharmacy/controlled-substance rules.
- Pharmacy moved for summary judgment arguing its obligation was limited to accurately filling facially valid prescriptions (a "clerical-accuracy" standard) and that it complied; Pharmacy’s expert (Dr. Lee) adopted that view but cited no controlling statutes/regulations.
- Plaintiff’s expert (Dr. O’Donnell) disputed the clerical-accuracy standard, relied on federal and New Mexico pharmacy/CSA regulations, and testified that repeated early fills, cash payments, and concurrent benzodiazepine use are red flags requiring pharmacist inquiry/PMP review.
- The district court granted summary judgment for the Pharmacy; the Court of Appeals reversed and remanded, holding the Pharmacy failed to establish a prima facie entitlement to summary judgment and genuine factual disputes remain—also noting the district court did not address negligence-per-se separately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable standard of care for pharmacists dispensing controlled substances | Pharmacists must go beyond clerical accuracy and follow statutes/regulations (PMP checks, inquiry on early fills/abuse indicators) | Pharmacists’ duty is limited to accurately filling facially valid prescriptions unless they know of specific harm | Court: Question of first impression; standard is fact-specific and informed by statutes/regulations; cannot be decided as matter of law on the record presented |
| Whether Pharmacy met its burden for summary judgment on negligence | No—Pharmacy didn’t account for regulatory duties and facts (early fills, cash payment) create disputes | Yes—Dr. Lee’s affidavit said prescriptions were valid and Pharmacy complied | Held: Pharmacy failed to make prima facie showing; Dr. Lee’s affidavit insufficient because it ignored applicable laws/regulations |
| Sufficiency of expert proof to create factual dispute | Plaintiff’s expert tied opinions to pharmacy practice standards, statutes, and PMP duties, creating genuine issues | Pharmacy argued plaintiff’s expert didn’t adequately "take on" its expert | Held: Plaintiff’s expert was sufficient to raise genuine disputes of material fact about standard of care and breach |
| Negligence per se claim / whether district court adjudicated it | Statutes/regulations provide specific duties distinguishable from common-law care; Pharmacy violated them | Pharmacy did not address negligence-per-se below and thus cannot prevail now | Held: Dismissal was improper because Pharmacy did not demonstrate entitlement to summary judgment on negligence per se and district court did not rule on it |
Key Cases Cited
- Horner v. Spalitto, 1 S.W.3d 519 (Mo. Ct. App. 1999) (pharmacist must exercise care of a reasonably prudent pharmacist; factual inquiry required)
- Lasley v. Shrake's Country Club Pharm., Inc., 880 P.2d 1129 (Ariz. Ct. App. 1994) (professional standard for pharmacists informed by expert testimony; trial issues on breach)
- Oleckna v. Daytona Discount Pharmacy, 162 So. 3d 178 (Fla. Dist. Ct. App. 2015) (refused to accept a purely clerical-accuracy standard where early fills and abuse indicators exist)
- Powers v. Thobhani, 903 So. 2d 275 (Fla. Dist. Ct. App. 2005) (statutes/regulations provide policy basis to impose negligence liability for failing to use due care in filling prescriptions)
- Kowalski v. Rose Drugs of Dardanelle, Inc., 378 S.W.3d 109 (Ark. 2011) (discussing limits and policy concerns of imposing broad pharmacist duties)
- McKee v. Am. Home Prods. Corp., 782 P.2d 1045 (Wash. 1989) (policy concerns about pharmacists second-guessing physicians)