Crippens v. Sav on Drug Stores

961 P.2d 761, 114 Nev. 760, 1998 Nev. LEXIS 92

• Court: Nevada Supreme Court
• Decided: July 28, 1998
• Docket: 27735
• Status: Published

Opinions

OPINION

By the Court, Shearing, J.:

The trial court granted summary judgment to Sav On Drug Stores, dismissing appellant Dianna Crippens’ action for negligent infliction of emotional distress. Ms. Crippens’ claim was based upon her having witnessed the adverse effects upon her mother resulting from the administration of prescription medication that had been negligently dispensed by Sav On. Ms. Crippens, who had been providing care to her mother, obtained the medication for her mother, the druggist had filled the prescription with the wrong drug which turned out to be highly toxic, and Ms. Crippens observed her mother become incoherent, eventually experience hypoglycemic shock and become permanently disabled. We reverse the summary judgment in favor of Sav On and conclude that this matter should proceed to trial.

DISCUSSION

This case is governed by State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). Eaton requires that a bystander plaintiff be closely related to the victim of an accident, be located near the scene of the accident, and suffer a shock resulting from direct emotional impact stemming from the sensory and contemporaneous observance of the accident. Id. at 716, 710 P.2d at 1377-78.

The majority of the cases on negligent infliction of emotional distress have involved automobile accidents, including Eaton. Thus, some of the language of these cases cannot appropriately be applied to the negligence of a pharmacist dispensing drugs. In addition to debating whether a plaintiff is a bystander or what the plaintiff actually observed, we should look to the basic principles underlying the tort of negligent infliction of emotional distress.

In Eaton, this court discussed some of the history of the tort of negligent infliction of emotional distress due to injury to another. This court embraced the ruling in Dillon v. Legg, 441 P.2d 912 (Cal. 1968) by saying:

[T]he [Dillon] court held that liability could be circumscribed in these cases, as in all tort cases, by the application of the general principles of negligence. 441 P.2d at 924. The trial courts could determine whether the accident and the harm to the bystander was reasonably foreseeable and “thus mark out areas of liability, excluding the remote and unexpected.” 441 P.2d at 921. We agree with the reasoning of the California court. We “see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case now before us.” 441 P.2d at 924. . . . See also II Harper and James § 18.4, p. 1039 (“mechanical rules of thumb which are at variance with these [general] principles [of tort law] do more harm than good”).

Eaton, 101 Nev. at 713, 710 P.2d at 1376.

Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court’s test for negligent infliction of emotional distress. Id. at 715.

In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist’s negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.

Of course, the plaintiff still faces the burden of proving her damages were proximately caused by the pharmacist’s negligence. The jury should be allowed to make the determination of whether Crippens’ claim is meritorious.¹

Accordingly, we reverse the judgment of the district court and remand for further proceedings.

Rose and Maupin, JJ., concur.

1 We have considered and rejected Ms. Crippens’ claim that she is entitled to recover under NRS 639.266. This statute merely requires that pharmacists “communicate” certain data relating to use and proper administration of dispensed drugs. The law is quite clearly intended for the protection of the users of drugs and does not relate directly or indirectly to other persons who might observe the adverse effects of a negligently-dispensed drug. Ms. Crippens’ claim for emotional distress does not relate to the manner in which the drug was administered but, rather, to the negligent dispensing of the wrong drug. Even if Sav On had dispensed the right drug with the wrong instructions, NRS 639.266 would not apply to Ms. Crippens’ claim, although it might have some applicability to the user of the drug. It is clear that a statute which regulates the “communication” of information concerning administration of drugs does not create a duty running from Sav On to Ms. Crippens with respect to her observation of the effects of a drug that had not even been prescribed.