Klasch v. Walgreen Co.

• Decision Date: 23 November 2011
• Docket Number: No. 54805.,54805.
• Citation: 264 P.3d 1155,127 Nev. Adv. Op. 74
• Parties: Dennis KLASCH, Individually; Marilyn Lind, Individually; and Dennis Klasch, Marilyn Lind, and Reva S. Archer, as Co–Special Administrators for the Estate of Helen Klasch, Appellants,v.WALGREEN CO., an Illinois Corporation d/b/a Walgreens, Respondent.
• Court: Nevada Supreme Court

264 P.3d 1155

127 Nev. Adv. Op. 74

Dennis KLASCH, Individually; Marilyn Lind, Individually; and Dennis Klasch, Marilyn Lind, and Reva S. Archer, as Co–Special Administrators for the Estate of Helen Klasch, Appellants,

v.WALGREEN CO., an Illinois Corporation d/b/a Walgreens, Respondent.

No. 54805.

Supreme Court of Nevada.

Nov. 23, 2011.

Bradley Drendel & Jeanney and Bill Bradley, Reno, for Appellants.Stutz, Artiano, Shinoff & Holtz and James F. Holtz, Las Vegas, for Respondent.BEFORE THE COURT EN BANC.

OPINION

By the Court, PARRAGUIRRE, J.:

In this appeal, we consider the duty of care that a pharmacist owes his or her customers. Specifically, we are asked to clarify whether a pharmacist's only duty is to fill a customer's prescription with the correct medication and dosage or if, under certain circumstances, a pharmacist may have a duty to do more. We conclude that when a pharmacist has knowledge of a customer-specific risk with respect to a prescribed medication, the pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of this risk. Having determined that the pharmacist in this case had knowledge of a customer-specific risk, we conclude that the summary judgment record before the district court was inadequate to conclude, as a matter of law, that no genuine issues of fact remain as to breach of duty and causation of injury. Accordingly, we reverse the district court's summary judgment in favor of respondent and remand this case to the district court.

FACTS

In December 2005, Helen Klasch visited Dr. Fredrick Tanenggee, M.D., for the first time. While filling out paperwork concerning her medical history, Klasch indicated that she might have a sulfa allergy. People with sulfa allergies generally experience minor skin rashes when exposed to sulfa, but in a small number of cases, the sulfa exposure may cause a toxic reaction in the person's skin, potentially leading to death.¹ Although still largely unpredictable, people who have experienced a past allergic reaction to sulfa are at a heightened risk for suffering this toxic reaction in the event of future sulfa exposure. After some further discussion with Dr. Tanenggee's assistant, this possible sulfa allergy was recorded on Klasch's medical chart with a question mark (“Sulfa?”).

In July 2006, Klasch returned to Dr. Tanenggee's office, complaining of “abdominal fullness.” After performing routine tests, Dr. Tanenggee diagnosed her with a urinary tract infection. Dr. Tanenggee told Klasch that under normal circumstances, her infection could be treated most effectively with Bactrim, a sulfa-based antibiotic. Given the notation in her chart, however, Dr. Tanenggee asked Klasch to clarify how certain she was of her sulfa allergy. After some further discussion, Klasch downplayed the previous notation and asked Dr. Tanenggee to write her a prescription for Bactrim. Dr. Tanenggee complied, and Klasch dropped off the prescription at Walgreens Pharmacy on her way home from Dr. Tanenggee's office.

Later that same day, Klasch's caretaker returned to Walgreens to pick up the prescription. Upon asking a pharmacy employee to release the prescription, the employee told the caretaker that Klasch's prescription had been “flagged” by Walgreens' computer system while it was being filled. Walgreens maintains a “patient profile” for each of its customers, which its pharmacists use to identify any potential allergic reactions, harmful interactions with other medications, or adverse side effects that a customer may have to a particular medication. The employee told Klasch's caretaker that the prescription had been flagged because Klasch's patient profile indicated that she was allergic to sulfa-based drugs.² The caretaker then asked the employee to call Klasch and to speak with her directly.

A Walgreens employee called Klasch and conveyed that her prescription had been flagged because of her sulfa allergy. In response, Klasch reportedly indicated that she had taken Bactrim in the past and that she had not experienced any adverse reaction to it. Satisfied with this clarification, a pharmacist then manually overrode the computer system's flag, and the prescription was released to Klasch's caretaker.³

Later that day, after taking the medication, Klasch complained that she felt “itchy.” The following day, Klasch called Dr. Tanenggee's office and left a voice mail in which she stated that she was wrong about not having a sulfa allergy. Klasch's condition continued to worsen, and she was taken to the emergency room. After being diagnosed with SJS/TEN, Klasch was transferred to a burn center, where she eventually lapsed into a coma and passed away. At the time Klasch was removed from life support, she had burns covering 40 to 50 percent of her body.

Klasch's two children (the Klasches) brought a wrongful-death action against Walgreens, alleging that its pharmacist breached the duty of care owed to their mother. Specifically, the Klasches contended that Walgreens' pharmacist breached her duty of care by failing to adequately warn Klasch of the prescribed medication's risks in light of her allergy to it or, alternatively, by failing to call Dr. Tanenggee to clarify whether he really meant to prescribe a medication to which she was allergic.⁴

Walgreens filed a motion for summary judgment, contending that in a majority of jurisdictions, the learned-intermediary doctrine limits a pharmacist's duty to do anything more than correctly fill prescriptions as written. Walgreens contended that since its pharmacist had filled Klasch's prescription with the correct medication and dosage, it had, as a matter of law, fulfilled its duty to her.⁵

Following what it perceived to be the “majority rule,” the district court granted Walgreens' summary judgment motion on the basis that “the pharmacist's limited duty is to properly fill the prescription, as written by the physician, unless there is plain error or the prescription is obviously fatal.” This appeal followed.

DISCUSSION

Although this court has not previously considered the learned-intermediary doctrine, the issues raised in this appeal compel us to consider its applicability and scope. In so doing, we first adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation and hold that pharmacists have no duty to warn of a prescribed medication's generalized risks.

We next consider whether the learned-intermediary doctrine likewise insulates a pharmacist from liability when he or she has knowledge of a customer-specific risk. Following the modern trend of case law, we conclude that the learned-intermediary doctrine does not foreclose a pharmacist's potential for liability when the pharmacist has knowledge of a customer-specific risk. Instead, under these circumstances, a pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of the risk. Because factual issues remain in this case regarding breach of duty and causation of injury, we reverse the district court's summary judgment in favor of Walgreens and remand this case to the district court.⁶

Standard of review

We review an appeal from an order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate “when the pleadings and other evidence on file demonstrate that no genuine issue as to any material fact remains and that the moving party is entitled to a judgment as a matter of law.” Id. (quotation omitted). When 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.” Id.

The learned-intermediary doctrine prevents pharmacists from interfering with the doctor-patient relationship

To prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Sanchez v. Wal–Mart Stores, 125 Nev. ––––, ––––, 221 P.3d 1276, 1280 (2009). At issue in this case is the interplay between the first two elements: the scope of Walgreens' duty, and whether it may have breached this duty. Walgreens acknowledges that it owed the Klasches' mother a duty to correctly fill her prescription, but contends that it did not owe her a duty to warn her of the risk the medication posed to her or to notify her prescribing doctor of that risk. Walgreens contends that these additional duties would be foreclosed under the learned-intermediary doctrine.

Traditionally, the learned-intermediary doctrine has been used to insulate drug manufacturers from liability in products-liability lawsuits.⁷ Under the learned-intermediary doctrine, a drug manufacturer is immune from liability to a patient taking the manufacturer's drug so long as the manufacturer has provided the patient's doctor with all relevant safety information for that drug.⁸ It is then up to the patient's doctor—who has the benefit of knowing the patient's specific situation—to convey to the patient any information that the doctor deems relevant.⁹

Jurisdictions adopting the learned-intermediary doctrine in the context of pharmacist/customer tort litigation have put forth a similar rationale: that between the doctor and the pharmacist, the doctor is in the best position to warn the customer of a given medication's generalized risks. ¹⁰ Or, viewed more pragmatically, the doctrine prevents pharmacists from constantly second-guessing a prescribing doctor's judgment simply in order to avoid his or her own liability to the customer.¹¹ In this sense, the learned-intermediary doctrine preserves the pharmacist's role as a conduit for dispensing much-needed prescription medications.

Because we believe that these public-policy considerations are sound, we adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation....