Stutz Artiano Shinoff & Holtz loses in Nevada pharmacy case (Walgreens)

See Stutz Artiano Shinoff & Holtz on San Diego Education Report.
See blog posts re Stutz law firm.

KLASCH v. WALGREEN CO.
Leagle.com
November 23, 2011

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.

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.

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. The caretaker then asked the employee to call Klasch and to speak with her directly...