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
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
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