Kerns v. Hoppe

• Decision Date: 21 March 2012
• Docket Number: No. 55615.,55615.
• Citation: 381 P.3d 630 (Table)
• Parties: Stephanie KERNS, Individually, as Heir to Warner Kerns and Personal Representative of the Estate of Warner Scott Kerns, and on behalf of Kyle Kerns, a minor, Appellant, v. Patty HOPPE, as Personal Representative of the Estate of Walter J. Hoppe, D.O., not Individually; David Armitage, P.A.-C, an Individual; Desert Trails Medical, Inc., a Nevada Corporation; Wal–Mart Stores, Inc., a Delaware Corporation; Ann Watkins f/k/a Ann Foley, an Individual; Lisa Spink, an Individual; and Judy Stinson, an Individual, Respondents.
• Court: Nevada Supreme Court

381 P.3d 630 (Table)

Stephanie KERNS, Individually, as Heir to Warner Kerns and Personal Representative of the Estate of Warner Scott Kerns, and on behalf of Kyle Kerns, a minor, Appellant,

v.Patty HOPPE, as Personal Representative of the Estate of Walter J. Hoppe, D.O., not Individually; David Armitage, P.A.-C, an Individual; Desert Trails Medical, Inc., a Nevada Corporation; Wal–Mart Stores, Inc., a Delaware Corporation; Ann Watkins f/k/a Ann Foley, an Individual; Lisa Spink, an Individual; and Judy Stinson, an Individual, Respondents.

No. 55615.

Supreme Court of Nevada.

March 21, 2012.

Ehrlich Law Firm

Jesse M. Sbaih & Associates, Ltd.

Phillips, Spallas & Angstadt, LLC

John H. Cotton & Associates, Ltd.

ORDER AFFIRMING IN PART. REVERSING IN PART AND REMANDING

This is an appeal from a district court summary judgment in a medical malpractice and negligence action. Fifth Judicial District Court, Nye County; Robert W. Lane, Judge.

Warner Kerns (the decedent) received treatment from respondents Dr. Walter J. Hoppe, D.O.,¹ David Armitage, PA–C, and Desert Trails Medical, Inc. (collectively, the Medical Defendants), for a long history of intense knee pain resulting from multiple motorcycle accidents that led to narcotics dependence

. The decedent's pain was managed through interchanging prescriptions for painkillers including Norco, OxyContin, Vicodin, and methadone as to not encourage addiction to any one medication. The goal was to use the medications for pain management purposes until the decedent had surgery. Because Desert Trails was not licensed as an addiction clinic, it could only prescribe these drugs for pain management purposes and not for addiction. However, in 2005, the Medical Defendants diagnosed the decedent with addiction to OxyContin. The Medical Defendants weaned the decedent off OxyContin over a seven-day period and replaced it with methadone that was then to be slowly decreased until the decedent was off of both medicines. While the decedent was receiving painkillers from the Medical Defendants, he ‘doctor shopped’ by visiting other physicians to procure extra narcotics. He then filled these prescriptions at various pharmacies. In the years leading up to the decedent's death, Desert Trails and three of the decedent's other medical providers had the decedent sign narcotics contracts acknowledging that it is illegal to obtain multiple prescriptions from various doctors and that it might endanger his health. The contracts also stated that the decedent would not request or accept controlled substances from any other medical providers. Subsequently, the decedent died in his sleep from methadone intoxication. The methadone was prescribed to him at Desert Trails. It was unknown whether the decedent was taking his prescribed dose of the methadone at the time of his death because the decedent's widow, appellant Stephanie Kerns (Kerns), refused to look for the pill bottles. Kerns was asked to produce the pills on two separate occasions and her response was that she did not look for the pill bottles and does not know of the pill bottles whereabouts.

After the decedent's death, Kerns sued the physicians and pharmacy that provided the decedent with the methadone

pills. Kerns asserted claims for medical malpractice, negligence, and statutory violations against respondents Wal–Mart Stores, Inc., and various Wal–Mart pharmacists (collectively, the Pharmacy Defendants), in addition to the Medical Defendants. Kerns accused respondents of providing medications to an addict in violation of state and federal law. Because the pharmacy was not a Drug Enforcement Administration (DEA)-registered narcotics-treatment program, it could only legally fill methadone prescriptions for treating pain—not narcotics addiction.

Respondents moved for, and the district court granted, summary judgment in their favor, finding that the decedent assumed the risk of his death by abusing the various drugs prescribed to him, and that Kerns failed to prove that respondents' actions in prescribing and dispensing the medication to the decedent were the cause of his death. In addition, in the event that summary judgment is reversed on appeal, the district court issued an order granting the Medical Defendants an adverse-inference instruction at trial because of Kerns' failure to attempt to locate the pill bottles.²

On appeal, Kerns argues that the district court erred in granting summary judgment in favor of respondents.³ Kerns also argues that the district court abused its discretion in concluding that, if its grant of summary judgment is reversed on appeal, any jury hearing the case shall be given an adverse-inference instruction that the decedent, prior to his death, took more of the prescription drugs than he was instructed.

We conclude that the district court erred in granting summary judgment based on both the assumption of risk doctrine and causation concerning the alleged negligence of the Medical Defendants. However, we conclude that the district court appropriately granted summary judgment on the claims against the Pharmacy Defendants. We further conclude that the district court properly decided that an adverse-inference instruction should be given upon remand should this case proceed to trial.

Standard of review

This court reviews an order granting summary judgment de novo. Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713, 57 P.3d 82, 87 (2002)

. “Summary judgment is appropriate ... when the pleadings [and other evidence in the record] demonstrate that no genuine issue of material fact [remains], and the moving party is entitled to judgment as a matter of law.” Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005) ; NRCP 56(c). Under NRCP 56, the burden of proving that there is no genuine issue of material fact lies with the moving party. Maine v. Stewart, 109 Nev. 721, 726–27, 857 P.2d 755, 758 (1993). However, once the moving party satisfies his or her burden as required by NRCP 56, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. at 727, 857 P.2d at 759. “[W]hen reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.” Wood, 121 Nev. at 729, 121 P.3d at 1029.

The district court's factual findings are given deference and will be upheld “unless they are clearly erroneous and not based on substantial evidence.” International Fid. Ins. v. State of Nevada, 122 Nev. 39, 42, 126 P.3d 1133, 1134–35 (2006)

. “Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.” Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 141 (2008).

Assumption of risk

Kerns argues that the fact that the decedent knowingly encountered the dangers posed by abusing prescription drugs does not provide respondents with a complete defense to negligently and illegally providing him with methadone. Kerns contends that respondents cannot invoke express assumption of risk by relying on the narcotics contracts signed by the decedent when the contracts do not purport to release respondents from liability for the negligence that took the decedent's life. Kerns also argues that the question of whether the decedent willfully encountered a known risk and what portion of fault he should bear if he did are factual issues that must be submitted to a jury. We agree and conclude that the district court erred in granting summary judgment on this issue.

Generally, assumption of risk is classified into three categories—express, implied primary, and implied secondary assumption of risk. Turner v. Mandalay Sports Entm't, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008)

. Both express and primary implied assumption of risk are at issue here. We will discuss each in turn.

Express assumption of risk

“Express assumption of risk ... stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.” Mizushima v. Sunset Ranch. 103 Nev. 259, 262, 737 P.2d 1158, 1159 (1987)

, overruled on other grounds by

Turner v. Mandalay Sports Entm't, 124 Nev. 213, 219–21, 180 P.3d 1172, 1176–77 (2008). An agreement dealing with the express assumption of risk is governed by the law of contracts and will generally be enforced unless it: (1) is barred by an applicable statue, (2) extends protection to willful or gross negligence, or (3) otherwise offends public policy. 57B Am.Jur.2d Negligence § 766 (2004). To form the predicate for express assumption of the risk, a document must indicate that the plaintiff agrees to assume the risk of injury caused by the other party's negligence. Mizushima, 103 Nev. at 264, 737 P.2d at 1161.

Here, the decedent signed numerous narcotics contracts that provided that he would not request or accept controlled substances from any other medical providers and would only receive prescriptions from the doctor providing the contract. The Desert Trails narcotics contract informed the decedent that abusing his medications was dangerous and warned him that his medical providers would terminate his treatment and report him to the police if they became aware of any abuse.

Acknowledgement of a risk is not enough for an express assumption of risk—the decedent must have agreed to assume the risk of injury caused by respondents' negligence, if any, in prescribing and dispensing him the methadone

that caused his death. From the language of the narcotics contracts, there is no reason that the decedent would have the expectation that he was assuming the risk of injury caused by any negligent conduct on the part of respondents. The form contracts did not act as formal instruments to reapportion legal liability or to forfeit future legal remedies for medical malpractice. See

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