Nevada Supreme Court Rules State's Pharmacists Have Duty to Warn in Cases of Known Patient-Specific Risks

December 14, 2011 10:07 AM

Based upon a ruling issued by the Nevada Supreme Court, November 23, 2011, it is now common law in Nevada that if a pharmacist knows of a patient-specific risk with respect to a prescribed medication, the pharmacist has a duty to exercise reasonable care in warning the patient or the prescribing doctor of the risk. The case, Klasch v Walgreens, involved the dispensing of the drug Bactrim® to a patient whose profile on record at the pharmacy indicated a sulfa allergy. In addition, the pharmacy’s computer system flagged the risk for allergic reaction to the drug. A pharmacy employee spoke to plaintiff Klasch, who stated she had previously taken Bactrim and did not experience a reaction. The dispensing pharmacist did not consult the prescribing physician; however, the doctor was aware of the allergy and had discussed it with the patient before prescribing the drug. The patient took the dispensed drug, resulting in a fatal allergic reaction.

The court based its ruling on common law principles, and specifically on a modified interpretation of the learned intermediary doctrine, which has traditionally insulated drug manufacturers from responsibility in products liability lawsuits involving patient injury. Over the years, the doctrine has been expanded to immunize pharmacists from liability under the premise that the doctor is in the best position to warn a patient of a given medication’s general risks. Although the court affirmed the basic concept of the doctrine, that pharmacists have no duty to warn patients of the generalized risks inherent in the prescriptions they fill, the court limited the scope of the doctrine when a pharmacist has knowledge of a patient-specific risk.

In its opinion, the court cited the 2002 Illinois Supreme Court decision in Happel v Wal-Mart Stores, Inc, as particularly instructive. In Happel, an aspirin-allergic patient suffered injuries after taking Toradol®, despite the dispensing pharmacy having a record of the patient’s allergy and knowledge of the contraindication (see December 2010 NABP Newsletter article). NABP filed an amicus curiae brief on behalf of the plaintiff in the Happel case, supporting the position that pharmacists are educated, trained, health care practitioners whose pharmacy practice laws impose a duty to warn patients of medication-allergy contraindications (see June-July 2010 NABP Newsletter, page 131). In Klasch, neither party to the case addressed whether the state’s pharmacy practice law applied, therefore, the Nevada Supreme Court did not address the potential applicability of such law in its opinion.

The Nevada Supreme Court stated that because factual issues remain as to breach of duty and causation of injury, the court reversed the district court’s summary judgment in favor of the defendant pharmacy and remanded the case to the district court for further proceedings.

The court’s decision is available on the Nevada Supreme Court Web site.