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Recent Blog Posts in January 2010

January 26, 2010
  Nevada Supreme Court Addresses Pharmacy Liability to Third Parties
Posted By Steven J. Klearman

Nevada Supreme Court Addresses Pharmacy Liability to Third Parties

In Sanchez v. Wal-Mart Stores, 125 Nev. Adv. Op. No. 60 (December 24, 2009), the Nevada Supreme Court examined the scope of a pharmacy's duty of care.

In June 2004, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire and was assisted by a co-worker, Robert Martinez. The two men were hit by a vehicle driven by Patricia Copening, who was subsequently arrested for driving under the influence of controlled substances. Sanchez was killed and Martinez seriously injured as a result of the collision.

One year prior to the collision, in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force ("Task Force") sent a letter to all of the pharmacies and physicians that had dispensed narcotics to Copening or had written prescriptions for Copening. The letter warned that "from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies."

The court was faced with two issues:

1) Whether, in Nevada, pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim.

2) Whether Nevada's pharmacy statutes and regulations create a statutory duty to support a negligence per se claim against the pharmacies.

Duty of care under common-law negligence claim

The Court held that pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party.

The Court rejected the assertion that pharmacies have a special relationship with a third party. The Court noted that the pharmacy has no direct relationship with a third party injured by a pharmacy customer, and third parties such as Martinez and Sanchez are unidentifiable members of the general public. Accordingly, the pharmacies' dispensing of narcotics to Copening did not create a legal duty to Martinez and Sanchez.

Negligence Per Se Claim

The Court held that NRS 453.1545(1) does not create a duty to third parties upon which a negligence per se claim could be based. NRS 453.1545(1) calls for a program that tracks prescriptions that are filled by pharmacies.

Negligence per se claims are based on breaches of statutory duties. Negligence per se arises when an injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect.

Here, the negligence per se claim failed because "the duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacy's customer, if anyone, and not for the general public's protection." 

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January 12, 2010
  Workers Compensation Law: Inherent Hazards Compensable After Employee is Terminated
Posted By Steven J. Klearman

Under the Nevada Industrial Insurance Act (NIIA), an injured employee may receive workers' compensation benefits for injuries that arise out of and occur within the course of the employee's employment. Injuries occur "within the course" of employment when there exists a causal connection between the injury and the nature of the workplace.

Generally, an injury that occurs after the employment relationship ends is not compensable. However, in Fanders v. Riverside Resort & Casino, 126 Nev. Adv. Op. No. 50 (December 30, 2010), the Nevada Supreme Court recognized an exception to that rule. In Fanders, the employee cleaned hotel rooms at Riverside Resort & Casino. While at work one day, the employee was confronted by human resources with an accusation that she used foul language towards a coworker. The employee believed that Riverside was fabricating a reason to terminate her, so she became angry and quit.

The employee stated that she was next told to sign termination papers in the human resources office, and when she arrived there, security guards approached her and told her that they would escort her off Riverside's premises. However, the guards had been instructed to "86" the employee, and this required going to the security office and taking her photograph. The employee asked why they were trying to take her photo. They did not tell her, so she climbed under a table to avoid her picture being taken. According to the employee, one of the guards pulled her out from the table and called her a derogatory name. The employee was handcuffed and placed in a cell until a police officer arrived. The police officer cited the employee for battery against one of the guards.

The employee filed a civil suit against Riverside and the guards, who in turn filed summary judgment, asserting that the employee's injuries arose out of and within the course of her employment, and therefore the NIIA was the exclusive remedy for those injuries.

The Nevada Supreme Court ultimately remanded the case for resolution of factual disputes. Before doing so, the Court adopted the reasoning of Sanders v. Texas Employers Insurance Ass'n, 775 S.W.2d 762 (Tex. App. 1989):

In Sanders, the court held that once an employment relationship has ended, regardless of whether the employee quits or is fired, an injury that occurs at the job site or while leaving the job site generally is not sustained in the course of employment. Id. at 763-64. The court recognized, however, that even after termination, an injury still might be sustained in the course of employment if it occurs in a place where the employee is subject to the inherent hazards arising from the employment or if the employee is required to remain on the employer's premises "to take care of some other duty incidental to the termination." Id. at 764. We agree with the reasoning in Sanders that when an injury is the result of an inherent hazard of the employment or occurs in the course of conducting the termination, workers' compensation may apply to injuries sustained after the employment relationship is terminated.

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January 10, 2010
  Nevada Supreme Court Addresses Notice of Injury in Workers Compensation Action
Posted By Steven J. Klearman

In Nevada, the Nevada Industrial Insurance Act (NIIA) provides for compensation for injuries arising out of and within the course of employment . The NIIA requires injured employees to provide certain notices of their injury. Under NRS 617.342(1), an employee must "provide written notice of an occupational disease . . . within 7 days after the employee . . . has knowledge of the disability and its relationship to the employee's employment." Additionally, under NRS 617.344(1), an employee must file his or her claim for compensation "within 90 days after the employee has knowledge of the disability and its relationship to his or her employment."

In City of Las Vegas v. Lawson, 126 Nev. Adv. Op. No. 52 (December 30, 2010), the Nevada Supreme Court addressed the applicability of those notice requirements to breast cancer. There, the employee, Robin Lawson, was employed as a firefighter for the City of Las Vegas. In 1997, Lawson was diagnosed with breast cancer. She missed nine months of work for treatment. In 2004, Lawson's cancer returned. After undergoing a double mastectomy and chemotherapy, Lawson asked her physician if he thought that her cancers were caused by her occupation. He informed her that he did in fact believe that the cancer was due to her firefighting job, and he advised her to stop working. That day, Lawson filled out a "notice of injury or occupational disease." Six weeks later, Lawson filed a claim for workers compensation, which was denied.

The City of Las Vegas denied Lawson's claim, in part because Lawson was first diagnosed with cancer in 1997, so the City concluded notice that she provided and the workers' compensation claim that she submitted in 2005 were untimely pursuant to NRS 617.342 and NRS 617.344.

The Nevada Supreme Court disagreed. The Court noted that while some evidence implied that Lawson knew that her cancer was related to her job prior to 2005, substantial evidence supported that Lawson was not aware of the connection until her physician informed her of his opinion in 2005. 

Continue reading "Nevada Supreme Court Addresses Notice of Injury in Workers Compensation Action" »

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