Oakey v. May Maple Pharmacy, Inc.
Opinion
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: April 13, 2017
4 NO. 34,914
5 KATHLEEN M. OAKEY, Personal Representative 6 of the Estate of TAWANA LUCERO, deceased,
7 Plaintiff-Appellant,
8 v.
9 MAY MAPLE PHARMACY, INC.,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 C. Shannon Bacon, District Judge
13 Fine Law Firm 14 Mark Fine 15 Albuquerque, NM
16 Fuqua Law & Policy, P.C. 17 Scott Fuqua 18 Santa Fe, NM
19 for Appellant
20 Hatcher Law Group, P.A. 21 Scott P. Hatcher 22 Mark A. Cox 23 Santa Fe, NM
24 for Appellee 1 OPINION
2 VANZI, Chief Judge.
3 {1} This appeal arises from a lawsuit brought by the personal representative of the
4 estate of Tawana Lucero, who died at the age of nineteen from an overdose of
5 physician-prescribed medications, including opioids classified under federal and state
6 law as Schedule II controlled substances because of their high potential for abuse and
7 addiction. As relevant here, the personal representative (Plaintiff) asserts claims of
8 negligence and negligence per se against May Maple Pharmacy, Inc. (the Pharmacy).
9 The Pharmacy moved for summary judgment, contending that it was entitled to
10 judgment as a matter of law because “a pharmacist’s standard of care is to dispense
11 appropriately prescribed medications to a patient in accordance with a proper medical
12 doctor’s prescription[,]” and the Pharmacy met that standard in filling the
13 prescriptions at issue. The district court entered an order granting the motion,
14 dismissing all claims against the Pharmacy with prejudice, and awarding costs to the
15 Pharmacy. We reverse.
16 FACTUAL BACKGROUND
17 {2} The record reveals the following undisputed facts. On December 1, 2009,
18 Lucero died from multiple drug toxicity. The autopsy report identified the drugs in
19 her system as Oxycodone, Oxymorphone, and Alprazolam. At the time of her death, 1 Lucero’s Oxycodone levels were 980 ng/mL; her Oxymorphone1 levels were 26
2 ng/mL; and her Alprazolam levels were 95 ng/mL.2
3 {3} As described in the toxicology report, Oxycodone is a “semi-synthetic narcotic
4 analgesic” used to control pain. It has an “addiction liability” similar to that of
5 morphine and should be administered in the smallest dose possible and as
6 infrequently as possible; the usual adult dose is 5 mg every six hours. Oxycontin is
7 an extended-release form of Oxycodone. It can cause adverse reactions, including
8 death, at concentrations well less than 1000 ng/mL, especially when taken in
9 combination with other central nervous system (CNS) depressants. Opioids have a
10 high potential for abuse and addiction and are classified as Schedule II controlled
11 substances under federal and state law. 21 U.S.C. § 812(b)(2), (Schedule II)(a)(1)
12 (2012); 21 C.F.R. § 1308.12(b)(1); NMSA 1978, § 30-31-5(B) (1972); NMSA 1978,
13 § 30-31-7(A)(1)(a), (A)(2)(p) (2007); 16.19.20.66(A)(1)(n) NMAC. Alprazolam is
14 a benzodiazepine with CNS depressant effects used to manage anxiety and related
15 disorders. The recommended dosage is 0.8 to 4 mg for anxiety, and 6 to 9 mg for
16 phobic and panic disorders. When used in conjunction with other CNS depressants,
17 1 Oxymorphone is an opioid analgesic used to treat pain, and a 18 pharmacologically active metabolite of Oxycodone, with adverse effects typical of 19 opioids. It is also classified as a Schedule II controlled substance. See 21 C.F.R. § 20 1308.12(b)(1) (2016). 2 21 “ng” means nanogram; “mL” means milliter; “mg” means milligram.
2 1 Alprazolam can be toxic even at low concentrations. Alprazolam has a lower potential
2 for abuse than Oxycodone and is classified as a Schedule IV controlled substance. 21
3 C.F.R. § 1308.14(c)(2) (2015); § 30-31-5(D); 16.19.20.68(A)(2) NMAC.
4 {4} Dr. John Tyson of Doctor On Call, LLC, a medical clinic focusing on pain
5 management, wrote prescriptions for Oxycodone, Oxycontin, and Alprazolam to treat
6 Lucero’s pain and anxiety, which the Pharmacy dispensed to Lucero from May 28,
7 2009 through November 16, 2009. Oxycodone was prescribed in 5 mg dosages, and
8 Oxycontin was prescribed in dosages between 20 mg and 80 mg. The Pharmacy
9 sometimes dispensed medication to Lucero “early,” i.e., prior to the time the
10 previously prescribed amount should have lasted if taken as directed.
11 {5} The Pharmacy does not dispute Plaintiff’s interpretation of the record as
12 showing that the Pharmacy filled Oxycontin prescriptions for Lucero between two
13 and twenty-three days “early” on at least seven occasions between May 28, 2009 and
14 September 21, 2009. At least some of these prescriptions contained the words “OK
15 to fill early” or a similar indication that the prescription could be filled “early.” On
16 a few occasions, Lucero paid a substantial amount of cash to purchase Oxycontin
17 from the Pharmacy, and at least once paid $1,107 for 90 Oxycontin 80 mg pills in
18 September 2009. An October 2009 “addendum” note by Doctor on Call’s Dr. Maron
19 with the subject “Rx FRAUD?” indicates receipt of a call from an unidentified
3 1 pharmacist reporting that Lucero had “presented to pharmacy for early refill” and had
2 offered to pay over $1000 cash, despite that she would have received the medication
3 free via Medicaid three days later.
4 PROCEDURAL BACKGROUND
5 {6} Plaintiff initially sued Dr. Tyson and Doctor On Call, asserting claims for
6 malpractice, negligence, and wrongful death (among others), based on allegations that
7 Dr. Tyson had prescribed excessive amounts of dangerous medications to Lucero. A
8 subsequent amended complaint also asserted claims against the Pharmacy, as follows:
9 (1) negligence, based on allegations that the Pharmacy breached its “duty of care to
10 apply the knowledge ordinarily used by reasonably well-qualified pharmacists” by
11 dispensing “excessive quantities of Schedule II or other dangerous drugs” to Lucero;
12 and (2) negligence per se, based on allegations that the Pharmacy, by dispensing
13 “excessive quantities of medications” to Lucero “departed from the standard of care,
14 knowledge, and skill of a reasonably trained pharmacist” and breached regulatory
15 duties to “properly and reasonably dispense controlled medications” mandated by
16 16.19.20.41(A) NMAC and 16.19.4.16 NMAC.
17 {7} The Pharmacy moved for summary judgment, dismissal with prejudice, and
18 costs, based on the argument that “[a] pharmacist who accurately fills prescription
19 medication as prescribed by the doctor has no liability exposure to one who is injured
4 1 by the drugs on claims the amounts were excessive, unless the pharmacist has some
2 reason to know the specific customer will be harmed[,]” and that the Pharmacy
3 “accurately dispensed what . . . Lucero’s doctors prescribed and otherwise met all
4 applicable standards of care.” The Pharmacy’s motion discussed no standard other
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: April 13, 2017
4 NO. 34,914
5 KATHLEEN M. OAKEY, Personal Representative 6 of the Estate of TAWANA LUCERO, deceased,
7 Plaintiff-Appellant,
8 v.
9 MAY MAPLE PHARMACY, INC.,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 C. Shannon Bacon, District Judge
13 Fine Law Firm 14 Mark Fine 15 Albuquerque, NM
16 Fuqua Law & Policy, P.C. 17 Scott Fuqua 18 Santa Fe, NM
19 for Appellant
20 Hatcher Law Group, P.A. 21 Scott P. Hatcher 22 Mark A. Cox 23 Santa Fe, NM
24 for Appellee 1 OPINION
2 VANZI, Chief Judge.
3 {1} This appeal arises from a lawsuit brought by the personal representative of the
4 estate of Tawana Lucero, who died at the age of nineteen from an overdose of
5 physician-prescribed medications, including opioids classified under federal and state
6 law as Schedule II controlled substances because of their high potential for abuse and
7 addiction. As relevant here, the personal representative (Plaintiff) asserts claims of
8 negligence and negligence per se against May Maple Pharmacy, Inc. (the Pharmacy).
9 The Pharmacy moved for summary judgment, contending that it was entitled to
10 judgment as a matter of law because “a pharmacist’s standard of care is to dispense
11 appropriately prescribed medications to a patient in accordance with a proper medical
12 doctor’s prescription[,]” and the Pharmacy met that standard in filling the
13 prescriptions at issue. The district court entered an order granting the motion,
14 dismissing all claims against the Pharmacy with prejudice, and awarding costs to the
15 Pharmacy. We reverse.
16 FACTUAL BACKGROUND
17 {2} The record reveals the following undisputed facts. On December 1, 2009,
18 Lucero died from multiple drug toxicity. The autopsy report identified the drugs in
19 her system as Oxycodone, Oxymorphone, and Alprazolam. At the time of her death, 1 Lucero’s Oxycodone levels were 980 ng/mL; her Oxymorphone1 levels were 26
2 ng/mL; and her Alprazolam levels were 95 ng/mL.2
3 {3} As described in the toxicology report, Oxycodone is a “semi-synthetic narcotic
4 analgesic” used to control pain. It has an “addiction liability” similar to that of
5 morphine and should be administered in the smallest dose possible and as
6 infrequently as possible; the usual adult dose is 5 mg every six hours. Oxycontin is
7 an extended-release form of Oxycodone. It can cause adverse reactions, including
8 death, at concentrations well less than 1000 ng/mL, especially when taken in
9 combination with other central nervous system (CNS) depressants. Opioids have a
10 high potential for abuse and addiction and are classified as Schedule II controlled
11 substances under federal and state law. 21 U.S.C. § 812(b)(2), (Schedule II)(a)(1)
12 (2012); 21 C.F.R. § 1308.12(b)(1); NMSA 1978, § 30-31-5(B) (1972); NMSA 1978,
13 § 30-31-7(A)(1)(a), (A)(2)(p) (2007); 16.19.20.66(A)(1)(n) NMAC. Alprazolam is
14 a benzodiazepine with CNS depressant effects used to manage anxiety and related
15 disorders. The recommended dosage is 0.8 to 4 mg for anxiety, and 6 to 9 mg for
16 phobic and panic disorders. When used in conjunction with other CNS depressants,
17 1 Oxymorphone is an opioid analgesic used to treat pain, and a 18 pharmacologically active metabolite of Oxycodone, with adverse effects typical of 19 opioids. It is also classified as a Schedule II controlled substance. See 21 C.F.R. § 20 1308.12(b)(1) (2016). 2 21 “ng” means nanogram; “mL” means milliter; “mg” means milligram.
2 1 Alprazolam can be toxic even at low concentrations. Alprazolam has a lower potential
2 for abuse than Oxycodone and is classified as a Schedule IV controlled substance. 21
3 C.F.R. § 1308.14(c)(2) (2015); § 30-31-5(D); 16.19.20.68(A)(2) NMAC.
4 {4} Dr. John Tyson of Doctor On Call, LLC, a medical clinic focusing on pain
5 management, wrote prescriptions for Oxycodone, Oxycontin, and Alprazolam to treat
6 Lucero’s pain and anxiety, which the Pharmacy dispensed to Lucero from May 28,
7 2009 through November 16, 2009. Oxycodone was prescribed in 5 mg dosages, and
8 Oxycontin was prescribed in dosages between 20 mg and 80 mg. The Pharmacy
9 sometimes dispensed medication to Lucero “early,” i.e., prior to the time the
10 previously prescribed amount should have lasted if taken as directed.
11 {5} The Pharmacy does not dispute Plaintiff’s interpretation of the record as
12 showing that the Pharmacy filled Oxycontin prescriptions for Lucero between two
13 and twenty-three days “early” on at least seven occasions between May 28, 2009 and
14 September 21, 2009. At least some of these prescriptions contained the words “OK
15 to fill early” or a similar indication that the prescription could be filled “early.” On
16 a few occasions, Lucero paid a substantial amount of cash to purchase Oxycontin
17 from the Pharmacy, and at least once paid $1,107 for 90 Oxycontin 80 mg pills in
18 September 2009. An October 2009 “addendum” note by Doctor on Call’s Dr. Maron
19 with the subject “Rx FRAUD?” indicates receipt of a call from an unidentified
3 1 pharmacist reporting that Lucero had “presented to pharmacy for early refill” and had
2 offered to pay over $1000 cash, despite that she would have received the medication
3 free via Medicaid three days later.
4 PROCEDURAL BACKGROUND
5 {6} Plaintiff initially sued Dr. Tyson and Doctor On Call, asserting claims for
6 malpractice, negligence, and wrongful death (among others), based on allegations that
7 Dr. Tyson had prescribed excessive amounts of dangerous medications to Lucero. A
8 subsequent amended complaint also asserted claims against the Pharmacy, as follows:
9 (1) negligence, based on allegations that the Pharmacy breached its “duty of care to
10 apply the knowledge ordinarily used by reasonably well-qualified pharmacists” by
11 dispensing “excessive quantities of Schedule II or other dangerous drugs” to Lucero;
12 and (2) negligence per se, based on allegations that the Pharmacy, by dispensing
13 “excessive quantities of medications” to Lucero “departed from the standard of care,
14 knowledge, and skill of a reasonably trained pharmacist” and breached regulatory
15 duties to “properly and reasonably dispense controlled medications” mandated by
16 16.19.20.41(A) NMAC and 16.19.4.16 NMAC.
17 {7} The Pharmacy moved for summary judgment, dismissal with prejudice, and
18 costs, based on the argument that “[a] pharmacist who accurately fills prescription
19 medication as prescribed by the doctor has no liability exposure to one who is injured
4 1 by the drugs on claims the amounts were excessive, unless the pharmacist has some
2 reason to know the specific customer will be harmed[,]” and that the Pharmacy
3 “accurately dispensed what . . . Lucero’s doctors prescribed and otherwise met all
4 applicable standards of care.” The Pharmacy’s motion discussed no standard other
5 than its proffered clerical accuracy standard, for which it relied on case law from
6 other jurisdictions. The motion made no mention of any statutes or regulations
7 applicable to pharmacy practice or controlled substances and no argument concerning
8 Plaintiff’s claim of negligence per se, nor did the Pharmacy’s reply brief,3 although
9 Plaintiff addressed these points in opposing the motion. Plaintiff argued that genuine
10 issues of material fact precluded summary judgment because the parties’ experts gave
11 contrary opinions concerning the conduct required of a retail pharmacist in these
12 circumstances, pursuant to statutes, regulations, and public policy, and whether the
13 Pharmacy’s conduct deviated from the standard of care.
14 3 The reply brief was accompanied by a supplemental expert affidavit, which 15 asserted that the affidavit of Plaintiff’s expert did not substantiate a violation of the 16 federal Controlled Substances Act or New Mexico’s Pharmacy Act or Administrative 17 Code. The reply brief, however, made no such argument. We do not consider the 18 supplemental affidavit, as the motion itself must establish a prima facie case of 19 entitlement to summary judgment. See, e.g., Brown v. Taylor, 1995-NMSC-050, ¶¶ 20 8, 15, 120 N.M. 302, 901 P.2d 720 (stating that the party moving for summary 21 judgment bears “the burden of showing the absence of any genuine issue of material 22 fact, and also that the undisputed facts supported judgment in its favor as a matter of 23 law” and that “until the moving party has made a prima facie case that it is entitled 24 to summary judgment, the non-moving party is not required to make any showing 25 with regard to factual issues” (internal quotation marks and citation omitted)).
5 1 {8} The parties’ expert affidavits reflect differing opinions concerning the standard
2 of care for retail pharmacists dispensing Schedule II drugs and whether the
3 Pharmacy’s conduct met that standard. The Pharmacy’s expert, Dr. Matthew C. Lee,
4 stated that “[t]he appropriate standard of care for a retail pharmacist is that he or she
5 has a duty to dispense appropriately prescribed medications to a patient” and that if
6 the pharmacist “does not dispense medication in accordance with the medical doctor’s
7 prescription, that pharmacist risks interfering with the doctor/patient relationship and
8 may be inappropriately practicing medicine without a license.” According to Dr. Lee,
9 there were instances in this case “where the customer presented with an early refill”
10 but Dr. Tyson had approved “those early refills for reasons medically indicated by the
11 doctor[,]” and physician-approved “early refills” are valid and should be filled by the
12 pharmacist.
13 {9} Dr. Lee stated that, “[i]f the retail pharmacist does find discrepancies in either
14 the prescriptions ordered or in fact has evidence of drug abuse, the pharmacist should
15 call the prescribing physician to ensure that the prescriptions presented are in fact
16 what the physician intended to order[,]” noting but not identifying “certain
17 indications in the record” that the Pharmacy “did consult with personnel at
18 Doctor[]on[]Call[.]” Dr. Lee added,
19 [T]here is nothing unusual or inappropriate about either the level or 20 amount of narcotic medication prescribed which should have led any
6 1 retail pharmacist to question or refuse to dispense the prescription. 2 Although the dosages are considered high, specifically for Oxycontin, 3 there is nothing unusual in this dosage level as prescribed for patients 4 with chronic pain. In other words, all prescriptions of Dr. Tyson and 5 filled at the May Maple Pharmacy are valid and legitimate.
6 {10} Dr. Lee’s affidavit did not explain the basis for his opinions or identify any
7 source materials supporting them, other than his background in pharmacy and his
8 review of certain case documents, including prescriptions, medical records, and
9 deposition transcripts of the medical examiner and a state police officer. Although he
10 cited no authorities—legal or professional—Dr. Lee said he “found no violation of
11 any federal or New Mexico statutory or regulatory requirements dealing with the
12 practice of pharmacy[,]” and concluded without further explanation that the Pharmacy
13 “accurately filled all prescriptions according to the terms and instructions written by
14 Dr. Tyson” and “met all applicable standards of care which apply to the practice of
15 retail pharmacy.”
16 {11} Plaintiff’s expert, Dr. James T. O’Donnell, relied on his background in
17 pharmacy and review of record materials but also on his review of other materials,
18 including the Standards of Practice for the Profession of Pharmacy, the New Mexico
19 Pharmacy Practice Act, provisions of the federal Controlled Substances Act, and
20 materials addressing the responsibilities of pharmacists under the Controlled
21 Substances Act. Dr. O’Donnell disagreed with Dr. Lee’s opinions that the
7 1 prescriptions at issue were facially valid and that the standard of care for retail
2 pharmacists required nothing more of the Pharmacy in these circumstances than that
3 it accurately fill facially valid prescriptions. He said that prescriptions indicating “OK
4 to fill early” were illegal and could not be filled “no matter what the prescriber has
5 written on the prescription” because they were for Schedule II controlled substances,
6 which cannot be “refilled”5 or authorized as “OK to fill early.” According to Dr.
7 O’Donnell, a pharmacist faced with an “early” request to fill a prescription for a
8 Schedule II controlled substance “has a duty to inquire [of] the patient why, and then
9 speak to the physician and get authorization from the physician.”
10 {12} Dr. O’Donnell said that such “early” requests are “evidence of excessive use
11 of the [c]ontrolled [s]ubstance, in excess of the prescribed dose.” Excess use “places
12 the patient at risk ([of] death or serious injury), increases abuse, dependence, and
13 addiction, and may be evidence of diversion.” A pattern of such “early” requests “is
14 highly suspicious of abuse and[/]or diversion, and would preclude the pharmacist”
15 5 The Pharmacy and the district court criticized Dr. O’Donnell’s use of the term 16 “refill.” But Dr. Lee used that term in his affidavit, and Dr. O’Donnell responded that 17 Schedule II controlled substances may not be “refilled.” See NMSA 1978, § 30-31- 18 18(A) (2005); 16.19.20.43 NMAC. We note that the Administrative Code uses the 19 term “early refill” in listing indicators of “potential abuse or misuse of opioids,” 20 despite that opioids are Schedule II controlled substances. See 16.19.4.16(E)(1)(a) 21 NMAC. In any event, we do not understand the issue in this case to turn on the 22 difference between a “refill” and a request to fill a new prescription “early,” i.e., prior 23 to the time the previously prescribed amount should have lasted if taken as directed.
8 1 from filling the prescriptions; to do otherwise would violate requirements of “[g]ood
2 [f]aith, [r]easonable [j]udgment, and [c]orresponding [r]esponsibility” imposed by
3 federal and state law. According to Dr. O’Donnell, provisions of the federal
4 Controlled Substances Act, the New Mexico Pharmacy Act, and their respective
5 implementing regulations “require the pharmacist to consider issues beyond the face
6 legality of the prescription” such as abuse, diversion, and whether the prescription is
7 for a legitimate medical need. He concluded that the Pharmacy breached the
8 “[s]tandard of [c]are of the [p]rofession of [p]harmacy” and violated the New Mexico
9 Pharmacy Practice Act, NMSA 1978, § 61-11-1 (1997); 16.19.20.41 NMAC; and the
10 federal and state Controlled Substances Acts, 21 U.S.C. § 829 (2016); 21 C.F.R. §
11 1306.04(a) (2017); and NMSA 1978, § 30-31-1 (2005).
12 {13} At the motion hearing, the district court responded to Plaintiff’s observation
13 that no New Mexico case prescribes a standard of care for pharmacists in this
14 circumstance by stating that “there is a standard. It’s called the reasonably prudent
15 pharmacist.” The court focused heavily on Dr. O’Donnell’s opinion that prescriptions
16 indicating “OK to fill early” were illegal because they were for Schedule II controlled
17 substances, which cannot be “refilled” or authorized as “OK to fill early,” inquiring
18 what law supports that opinion, and stating that Dr. O’Donnell’s affidavit “needed to
19 be clear on its face” but fell “woefully short” and did not “set forth a standard of
9 1 care.” In the district court’s view, “Dr. O’Donnell needed to take on Dr. Lee in order
2 to create that genuine issue of material fact” and failed to do so.
3 {14} The district court entered an order dismissing the Pharmacy from the lawsuit
4 and awarding costs to the Pharmacy, stating without further elaboration that there
5 were no issues of material fact and that the Pharmacy was entitled to summary
6 judgment as a matter of law. This appeal followed.
7 STANDARD OF REVIEW
8 {15} Summary judgment is appropriate where “there is no genuine issue as to any
9 material fact and the moving party is entitled to a judgment as a matter of law.” Rule
10 1-056(C) NMRA. “An issue of fact is ‘material’ if the existence (or non-existence)
11 of the fact is of consequence under the substantive rules of law governing the parties’
12 dispute.” Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179,
13 195 P.3d 24. The motion must present “such evidence as is sufficient in law to raise
14 a presumption of fact or establish the fact in question unless rebutted.” Romero v.
15 Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (internal
16 quotation marks and citation omitted). If it does, the opposing party “must adduce
17 evidence to justify a trial on the issues.” Id. (internal quotation marks and citation
18 omitted). Nevertheless, “[t]he mere fact that the non-moving party has failed to
19 contravene the assertions of the material supporting a motion for summary judgment
10 1 does not mean that the moving party is entitled to judgment. The moving party may
2 not be entitled to judgment even if the non-moving party totally fails to respond to the
3 motion.” Brown, 1995-NMSC-050, ¶ 8. This is because “the non-moving party is not
4 required to make any showing with regard to factual issues” unless “the moving party
5 has made a prima facie case that it is entitled to summary judgment[.]” Id. (internal
6 quotation marks and citation omitted). “If there is the slightest doubt as to the
7 existence of material factual issues, summary judgment should be denied.” Garcia-
8 Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 7, 130 N.M. 25, 16 P.3d
9 1084 (internal quotation marks and citation omitted).
10 {16} We apply a de novo standard of review, pursuant to which we employ the same
11 standard the district court is required to apply on summary judgment, i.e., we “view
12 the facts in a light most favorable to the party opposing summary judgment and draw
13 all reasonable inferences in support of a trial on the merits.” Romero, 2010-NMSC-
14 035, ¶ 7 (internal quotation marks and citation omitted); see Thompson v. Potter,
15 2012-NMCA-014, ¶ 7, 268 P.3d 57 (“On appeal from the grant of summary judgment,
16 we ordinarily review the whole record in the light most favorable to the party
17 opposing summary judgment to determine if there is any evidence that places a
18 genuine issue of material fact in dispute.” (internal quotation marks and citation
19 omitted)).
11 1 DISCUSSION
2 {17} The district court’s order granting summary judgment contains no analysis but
3 necessarily reflects the court’s conclusion that Dr. Lee’s affidavit sufficed to satisfy
4 the Pharmacy’s burden to establish a prima facie case of entitlement to judgment as
5 a matter of law as to the applicable standard of care, the Pharmacy’s compliance with
6 the standard, and the court’s rejection of Plaintiff’s argument that the differing
7 opinions of the parties’ experts demonstrated the existence of a genuine dispute of
8 material fact on those issues. In addition, the district court’s dismissal of the
9 Pharmacy “from this suit[] with prejudice” necessarily reflects the dismissal of all
10 claims against the Pharmacy—the negligence claim and the separate claim for
11 negligence per se.
12 {18} We reverse, based on our conclusions that (1) the Pharmacy’s motion did not
13 establish a prima facie case of entitlement to judgment as a matter of law as to the
14 standard of care or the Pharmacy’s compliance with the standard; (2) even if the
15 Pharmacy had met that burden, Plaintiff’s expert affidavit sufficed to establish a
16 genuine dispute of material fact concerning these material issues; and (3) dismissal
17 of the Pharmacy from the case was improper because the motion did not demonstrate
12 1 the Pharmacy’s entitlement to summary judgment on the separate claim of negligence
2 per se, and there is no indication that the district court even considered that issue.6
3 {19} This case involves a question of first impression in New Mexico: the conduct
4 required of retail pharmacists in filling prescriptions for controlled substances with
5 a significant potential for abuse and addiction, such as Oxycodone and Oxycontin.
6 The few New Mexico negligence cases involving the conduct of pharmacists provide
7 no guidance. See, e.g., Johnson v. Primm, 1964-NMSC-217, ¶¶ 6, 15-16, 74 N.M.
8 597, 396 P.2d 426 (reversing summary judgment in favor of the pharmacy in a case
9 alleging that the pharmacy failed to exercise due care in selling the plaintiff a drug
10 in excess of the prescribed amount based on consideration of contributory negligence
11 and proximate cause without addressing the standard of care); Wilcox v. Butt’s Drug
12 Stores, Inc., 1934-NMSC-060, ¶ 12, 38 N.M. 502, 35 P.2d 978 (affirming judgment
13 against a pharmacy in a case in which the plaintiff sought damages for the death of
14 her dog from a dangerous drug, applying the “controlling” principle that “[a] druggist
15 6 We reject the Pharmacy’s contention that Plaintiff waived the improper- 16 dismissal argument by failing to raise the issue in the docketing statement and 17 violated Rule 12-208 NMRA by including this argument in the brief in chief. See 18 Rule 12-213(A)(1) NMRA (current version at Rule 12-318(A)(1) NMRA) (stating 19 that appellant’s brief in chief “may raise issues in addition to those raised in the 20 docketing statement . . . unless the appellee would be prejudiced”); State v. Salgado, 21 1991-NMCA-044, ¶ 3, 112 N.M. 537, 817 P.2d 730 (stating that, for cases assigned 22 to the general calendar, “we can consider any evidence in the record on appeal even 23 if not noted in the docketing statement”). The Pharmacy claims no prejudice, nor is 24 any prejudice apparent.
13 1 who negligently delivers a deleterious drug when a harmless one is called for is
2 responsible to the customer for the consequences, as being guilty of a breach of the
3 duty which the law imposes on him to avoid acts in their nature dangerous to the lives
4 of others” (internal quotation marks and citation omitted)); Thompson, 2012-NMCA-
5 014, ¶¶ 19-23 (declining to reach question of a consulting pharmacist’s duty to
6 patients of nursing facility).
7 {20} We recognize the importance of this question, especially in light of the nation’s
8 ongoing “opioid crisis,” the subject of news reports and commentary almost daily.
9 But the factual record and the law potentially relevant to this determination were not
10 adequately developed below, nor did the district court actually rule on the issue,7
11 leaving us with an insufficient basis for appellate review. Accordingly, we reverse
12 and remand for these reasons as well. See Garcia-Montoya, 2001-NMSC-003, ¶ 48
13 (remanding for district court to consider an issue in the first instance and, if
14 necessary, to develop additional facts); Brown, 1995-NMSC-050, ¶ 15 (stating that
15 summary judgment is inappropriate “when the facts before the court are insufficiently
7 16 We do not regard the district court’s statement at the motion hearing that 17 “there is a standard . . . called the reasonably prudent pharmacist” as a ruling 18 resolving the questions of the conduct required of retail pharmacists in these 19 circumstances and whether the Pharmacy’s conduct complied with that standard as 20 a matter of law. As we discuss further, the Pharmacy does not dispute the existence 21 of a duty to conform its conduct to that of a reasonably prudent pharmacist. At issue 22 is the specific conduct required in these circumstances and whether the Pharmacy’s 23 conduct met those requirements.
14 1 developed or where further factual resolution is essential for determination of the
2 central legal issues involved” (internal quotation marks and citation omitted));
3 Horner v. Spalitto, 1 S.W.3d 519, 524 (Mo. Ct. App. 1999) (reversing summary
4 judgment where the appellate court did not have “in the record presented . . .
5 sufficient detail to determine whether [the defendant] fulfilled his duty as a
6 pharmacist”).
7 A. The Substantive Legal Framework: Negligence and Negligence Per Se
8 {21} To prevail on a negligence claim, a plaintiff must prove “the existence of a duty
9 from a defendant to a plaintiff, breach of that duty, which is typically based upon a
10 standard of reasonable care, and the breach being a proximate cause and cause in fact
11 of the plaintiff’s damages.” Spencer v. Health Force, Inc., 2005-NMSC-002, ¶ 18,
12 137 N.M. 64, 107 P.3d 504 (internal quotation marks and citation omitted). To
13 support a claim for negligence per se (distinct from a negligence claim), “the
14 regulation or statute at issue must specify a duty that is distinguishable from the
15 ordinary standard of care[,]” rather than “impose general duties[.]” Thompson, 2012-
16 NMCA-014, ¶¶ 32-33; see Heath v. La Mariana Apartments, 2008-NMSC-017, ¶ 21,
17 143 N.M. 657, 180 P.3d 664 (explaining that, to support a claim for negligence per
18 se, a statute or regulation must “contain a specific standard of care that does not
19 merely repeat the common law standard”). “Duty” and the “standard of care” are
15 1 separate and distinct concepts. The difference may not always be clear in the case
2 law, in part, because courts address the issues as they are framed by the facts of the
3 particular case and by the arguments of the parties.
4 {22} “Duty” is a requirement imposed by law to conform one’s conduct to a certain
5 “standard of care.” See Calkins v. Cox Estates, 1990-NMSC-044, ¶ 8 n.1, 110 N.M.
6 59, 792 P.2d 36 (discussing “duty” as defining “the legal obligations of one party
7 toward another”). The existence of a duty is a question of policy to be determined by
8 the court as a matter of law “with reference to legal precedent, statutes, and other
9 principles comprising the law.” Id. ¶ 8 (citing W. Page Keeton, et al., Prosser &
10 Keeton on the Law of Torts § 37 (5th ed. 1984) (Prosser & Keeton)); see Rodriguez
11 v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, ¶ 19, 326 P.3d 465 (noting
12 that “courts should focus on policy considerations when determining the scope or
13 existence of a duty of care”); Tafoya v. Rael, 2008-NMSC-057, ¶ 14, 145 N.M. 4, 193
14 P.3d 551 (“It is well established that the existence of a tort duty in a given situation
15 is a question of policy to be answered by reference to legal precedent, statutes, and
16 other principles of law.” (internal quotation marks and citation omitted)); Lester ex
17 rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 10, 126 N.M. 404, 970 P.2d 590 (stating
18 that “[p]olicy determines duty” (internal quotation marks and citations omitted)).
16 1 {23} Where a “duty” exists, it generally requires that the defendant’s conduct
2 conform to the same standard of care—that of a reasonable person under the same or
3 similar circumstances, usually referred to as the “ordinary care” standard. See Prosser
4 & Keeton, supra, § 37[4] at 236; see also Calkins, 1990-NMSC-044, ¶ 11 (“New
5 Mexico law recognizes that there exists a duty assigned to all individuals requiring
6 them to act reasonably under the circumstances according to the standard of conduct
7 imposed upon them by the circumstances.”); UJI 13-1604 NMRA (“Every person has
8 a duty to exercise ordinary care for the safety of the person and the property of
9 others.”); UJI 13-1603 NMRA (instructing that “ ‘[o]rdinary care’ is that care which
10 a reasonably prudent person would use in the conduct of the person’s own affairs”;
11 “[w]hat constitutes ‘ordinary care’ varies with the nature of what is being done”; “[a]s
12 the risk of danger that should reasonably be foreseen increases, the amount of care
13 required also increases” and that, “[i]n deciding whether ordinary care has been used,
14 the conduct in question must be considered in the light of all the surrounding
15 circumstances”).
16 {24} In contrast to the question whether the defendant has a legal duty, determined
17 by the court as a matter of law, questions concerning whether the defendant has
18 exercised proper care in the performance of a legal duty are factual issues. See
19 Rodriguez, 2014-NMSC-014, ¶ 15 (explaining that “a court’s concern that the
17 1 plaintiffs are seeking a broader standard of care is a concern about whether the
2 plaintiffs expect too much of the defendants—something more than what is
3 reasonable—which is relevant to the issue of breach of duty, not whether a duty is
4 owed, and breach of duty questions are usually reserved for the jury”); Crouch v.
5 Most, 1967-NMSC-216, ¶ 16, 78 N.M. 406, 432 P.2d 250 (“[T]he question of whether
6 or not [the] appellee’s treatment was within an accepted medical standard was a
7 factual question requiring special scientific knowledge that could best be answered
8 by the expert witnesses.”); Lasley v. Shrake’s Country Club Pharm., Inc., 880 P.2d
9 1129, 1132 (Ariz. Ct. App. 1994) (explaining, in a case against a pharmacy, that
10 “[s]pecific details of conduct do not determine whether a duty exists but instead bear
11 on whether a defendant who owed a duty to the plaintiff breached the applicable
12 standard of care” and that “whether the defendant’s conduct met the standard of care
13 is a question for the trier of fact” in most cases); Hooks SuperX, Inc. v. McLaughlin,
14 642 N.E.2d 514, 519 (Ind. 1994) (stating in a pharmacy case that “[w]hat constitutes
15 due care in a particular case will depend upon the circumstances of that case, and will
16 usually be a question of fact”); Horner, 1 S.W.3d at 522 (stating that a pharmacist
17 “must exercise the care and prudence which a reasonably careful and prudent
18 pharmacist would exercise” and that the fact-finder must determine what this requires
19 in a particular case); Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990)
18 1 (explaining in a pharmacy case that duty “raises the question of whether the defendant
2 is under any obligation required by law for the benefit of the particular plaintiff[,]”
3 and that “once a duty is established, the scope of the duty or the standard of care is
4 a question of fact to be decided by the trier of fact”).
5 {25} Where the defendant is a professional, the duty imposed by law is not the
6 requirement to exercise “ordinary care” under the same or similar circumstances but
7 “to apply the knowledge, care, and skill of reasonably well-qualified professionals
8 practicing under similar circumstances.” Buke, LLC v. Cross Country Auto Sales,
9 LLC, 2014-NMCA-078, ¶ 50, 331 P.3d 942 (internal quotation marks and citation
10 omitted); see UJI 13-1101 NMRA (instructing that health care providers are “under
11 the duty to possess and apply the knowledge and to use the skill and care ordinarily
12 used by reasonably well-qualified [health care providers] practicing under similar
13 circumstances”); Lasley, 880 P.2d at 1132-33 (applying this standard to pharmacists);
14 Oleckna v. Daytona Discount Pharmacy, 162 So. 3d 178, 181 (Fla. Dist. Ct. App.
15 2015) (same); Hooks SuperX, Inc., 642 N.E.2d at 519 (same); Horner, 1 S.W.3d at
16 522 (same); Dooley, 805 S.W.2d at 385 (same). The professional standard of care
17 generally must be established by expert testimony. See Crouch, 1967-NMSC-216,
18 ¶ 16; Buke, 2014-NMCA-078, ¶ 51; UJI 13-1101 (instructing that the only way to
19 decide whether a health care provider met the professional standard is from expert
19 1 witnesses); Restatement (Third) of Torts: Liability for Physical & Emotional Harm
2 § 12, cmt. a (2010) (stating that “[i]f an actor has skills or knowledge that exceed
3 those possessed by most others, these skills or knowledge are circumstances to be
4 taken into account in determining whether the actor has behaved as a reasonably
5 careful person” and that these skills and knowledge “provide a mere circumstance for
6 the jury to consider in determining whether the actor has complied with the general
7 standard of reasonable care”).
8 {26} Notwithstanding that inquiries concerning whether a professional has exercised
9 the proper care in the performance of a legal duty are largely fact-specific, see, e.g.,
10 Rodriguez, 2014-NMSC-014, ¶ 15, statutes, regulations, and court rules imposing
11 requirements on professionals are relevant to the determination of the standard of care
12 required by the circumstances and whether it has been met, even if they do not
13 necessarily suffice to establish a standard of care or provide a cause of action for their
14 violation. See, e.g., Spencer v. Barber, 2013-NMSC-010, ¶¶ 14-19, 299 P.3d 388
15 (holding that the New Mexico Rules of Professional Conduct are relevant to establish
16 the appropriate standard of conduct for attorneys and that the determination of
17 whether or not the defendant attorney conformed to the standard of conduct required
18 by those rules “will depend on the evidence introduced at trial” and concluding, inter
19 alia, that genuine issues of material fact existed concerning whether the defendant
20 1 attorney failed to exercise reasonable skill and care in his representation of client);
2 Oleckna, 162 So. 3d at 183 n.4 (stating that Florida pharmaceutical regulatory statutes
3 and administrative codes do not create private cause of action but “do describe the
4 duties of Florida pharmacists”).
5 {27} Thus, where statutes, regulations, and/or court rules apply to the conduct of a
6 professional, they should be considered in determining whether the professional
7 fulfilled the duty imposed by the common law to conform his or her conduct to the
8 standard of care required in the circumstances, see Spencer, 2013-NMSC-010, ¶¶ 14-
9 19, and expert testimony purporting to address the professional standard of care and
10 whether it was met must account for them.
11 B. The Pharmacy Did Not Establish a Prima Facie Case of Entitlement to 12 Judgment as a Matter of Law on Either Negligence or Negligence Per Se
13 1. The Issue Presented Is Compliance With the Standard of Care
14 {28} The parties in this case appear to use the terms “duty” and “standard of care”
15 as if they were interchangeable. Nevertheless, as we understand their arguments, the
16 issue is not whether the law imposes a duty on pharmacists to their customers—that
17 proposition is not challenged—but the specific conduct required of pharmacists in
18 these circumstances, which we view as questions of fact informed by relevant
19 requirements prescribed by statutes and regulations governing the practice of
20 pharmacy and dispensing physician-prescribed controlled substances. See Trujillo v.
21 1 Puro, 1984-NMCA-050, ¶ 27, 101 N.M. 408, 683 P.2d 963 (“Expert testimony from
2 a qualified doctor in the same field, familiar with the circumstances of [the]
3 defendant’s practice, the standard of care of physicians, and the testimony of [the]
4 plaintiff, is generally sufficient to raise questions of material fact.”); Lasley, 880 P.2d
5 at 1132; Dooley, 805 S.W.2d at 384. We explain.
6 {29} The Pharmacy does not argue that it had no legal duty to Lucero. Indeed, the
7 Pharmacy made reference to “duty” below and to policy considerations in this Court.
8 Plaintiff also referenced a “duty of care” imposed by policy, statutes, and regulations
9 in the district court and does so here. And Plaintiff has cited statutes and regulations
10 in arguing that the standard of care required more of the Pharmacy in these
11 circumstances than accurate filling of facially valid prescriptions. Nevertheless, the
12 parties have not presented any developed argument addressing whether and to what
13 extent policy considerations do or do not mandate a legal duty. Instead, the Pharmacy
14 sought summary judgment based on the contention that its conduct met the
15 professional standard of care for retail pharmacists, relying on the affidavit of its
16 expert as evidence supporting that contention.8 Thus, we interpret the question before
8 17 The parties did not dispute below and do not dispute here that the Pharmacy’s 18 conduct must be assessed under a professional standard of care or that the standard 19 must be established by expert testimony, although the Pharmacy says in this Court 20 that “[u]nder the traditional theory of a liability, a pharmacist owes a duty of ordinary 21 care in practicing his or her profession.”
22 1 us as the specific conduct required by the professional standard of care in the
2 circumstances presented here and whether that standard was met.9
3 {30} The Pharmacy’s expert advocates what amounts to a clerical-accuracy standard,
4 requiring only that a retail pharmacist fill a prescription accurately, unless the
5 prescription is facially invalid or the pharmacist has personal knowledge that filling
6 the prescription would harm a specific customer, and contends that the Pharmacy met
7 that standard. Plaintiff’s expert contends that the Pharmacy’s proffered standard is
8 insufficient to fulfill the pharmacist’s duty of care in the context of prescriptions for
9 Schedule II controlled substances, relying on statutes and regulations as well as facts
10 indicating potential abuse or diversion.
11 9 As explained in Prosser and Keeton, the details of a defendant’s conduct do 12 not determine whether a duty exists but whether a defendant who owed a duty to the 13 plaintiff breached the applicable standard of care:
14 It is better to reserve “duty” for the problem of the relation between 15 individuals which imposes upon one a legal obligation for the benefit of 16 the other, and to deal with particular conduct in terms of a legal standard 17 of what is required to meet the obligation. In other words, “duty” is a 18 question of whether the defendant is under any obligation for the benefit 19 of the particular plaintiff; and in negligence cases, the duty [if it exists] 20 is always the same—to conform to the legal standard of reasonable 21 conduct in the light of the apparent risk. What the defendant must do, or 22 must not do, is a question of the standard of conduct required to satisfy 23 the duty.
24 Prosser & Keeton, supra, § 53, at 356.
23 1 2. The Pharmacy Did Not Establish as a Matter of Law That the Clerical- 2 Accuracy Standard Stated and Applied by Dr. Lee Is the Applicable 3 Standard of Care or That the Pharmacy Established Compliance
4 {31} A summary judgment motion must present “such evidence as is sufficient in
5 law to raise a presumption of fact or establish the fact in question unless rebutted.”
6 Romero, 2010-NMSC-035, ¶ 10 (internal quotation marks and citation omitted); see
7 Brown, 1995-NMSC-050, ¶ 15 (stating that the party moving for summary judgment
8 bears “the burden of showing the absence of any genuine issue of material fact, and
9 also that the undisputed facts supported judgment in its favor as a matter of law”). To
10 meet this burden on the grounds stated in its motion, the Pharmacy was required to
11 adduce undisputed facts sufficient to establish as a matter of law that (1) its proffered
12 standard requiring no more than clerical accuracy in filling prescriptions is the
13 applicable standard of care in the circumstances presented here, involving multiple
14 “early” requests for high dosages of Schedule II opioids taken with Schedule IV
15 benzodiazepines; and (2) it complied with this standard. The Pharmacy failed to do
16 so under both requirements.
17 {32} The Pharmacy’s motion asserted that “the law generally imposes a high degree
18 of care which other prudent and cautious pharmacists would exercise under similar
19 circumstances in the trade”—a proposition consistent with the general articulation of
20 the professional standard of care as requiring the professional “to apply the
24 1 knowledge, care, and skill of reasonably well-qualified professionals practicing under
2 similar circumstances.” Buke, 2014-NMCA-078, ¶ 50 (internal quotation marks and
3 citation omitted). The motion relied on cases from other jurisdictions that it described
4 as “failure to warn” cases, stating that they “are relevant to discuss the standard of
5 care of pharmacists[.]” According to the motion, these cases “generally” hold that
6 “there is no duty on the part of a pharmacist to monitor and intervene in a customer’s
7 use of drugs sold or otherwise act to ensure the drugs were properly prescribed by the
8 licensed physician[,]” based on the concern that “[p]lacing these duties to warn on the
9 pharmacist would only serve to compel the pharmacist to second guess every
10 prescription a doctor orders in an attempt to escape liability.” Jones v. Irvin, 602 F.
11 Supp. 399, 402 (S.D. Ill. 1985). Thus, a pharmacist has “no duty to warn of potential
12 hazards” and is not liable for “any resulting harm to the patients consuming the drugs
13 if the pharmacist accurately dispenses medication pursuant to prescriptions proper on
14 their face, unless the pharmacist knows or has reason to know that harm will occur
15 to a specific customer.”
16 {33} The motion concluded that Plaintiffs did not allege a failure to warn or that the
17 Pharmacy filled prescriptions inaccurately, but that “the doctor improperly
18 determined the appropriate drug, quantity, and dosage for . . . Lucero, an error not
19 discovered by [the Pharmacy].” Dr. Lee’s affidavit “squarely rejected” this allegation,
25 1 the Pharmacy contended, by opining that the prescriptions were valid and legal and
2 that “[t]here was nothing on the face of the prescriptions, including the amounts,
3 dosage levels, or quantity dispensed which would indicate to a prudent pharmacist
4 that the customer was being improperly medicated or over prescribed for the
5 condition of chronic pain.” Although Dr. Lee said that he “found no violation of any
6 federal or New Mexico statutory or regulatory requirements dealing with the practice
7 of pharmacy[,]” and that the Pharmacy “met all applicable standards of care which
8 apply to the practice of retail pharmacy[,]” his affidavit cited no statutes, regulations,
9 or other authorities supporting that conclusion or his proffered clerical-accuracy
10 standard.
11 {34} In New Mexico, as in other states, the practice of pharmacy is regulated as “a
12 professional practice affecting the public health, safety and welfare.” NMSA 1978,
13 § 61-11-1.1(A) (1997). The Pharmacy Act, NMSA 1978, §§ 61-11-1 to -18.1 (1969,
14 as amended through 2016), created the New Mexico Board of Pharmacy (Board), see
15 § 61-11-4(A), and delegated to the Board authority and responsibility for adopting
16 rules and regulations governing the pharmacy profession in New Mexico, see § 61-
17 11-6(A). The Legislature also delegated to the Board authority and responsibility for
18 adopting rules and regulations necessary to administer New Mexico’s Controlled
19 Substances Act. See NMSA 1978, § 30-31-11 (1994); 16.19.20.3 NMAC. The stated
26 1 objective of these regulations is “to protect the public health and welfare of the
2 citizens of New Mexico by controlling and monitoring access to controlled
3 substances and to give notice of the board’s designation of particular substances as
4 controlled substances.” 16.19.20.6 NMAC. One of these regulations, 16.19.20.41(A)
5 NMAC, provides that “[t]he responsibility for the proper prescribing and dispensing
6 of controlled substances is upon the prescribing practitioner, but a corresponding
7 responsibility rests with the pharmacist who fills the prescription.” Federal law
8 imposes the same “corresponding responsibility” upon pharmacists pursuant to
9 regulations promulgated under the Controlled Substances Act, 21 U.S.C. § 829. 21
10 C.F.R. § 1306.04(a).
11 {35} Among the specific responsibilities of pharmacists imposed by the New
12 Mexico Administrative Code is the mandatory responsibility (“shall”) to review the
13 patient’s profile and, “[p]rior to dispensing any prescription,” to identify issues
14 including “clinical abuse/misuse” and “incorrect drug dosage.” 16.19.4.16(D)(1)(a),
15 (e) NMAC. “Upon recognizing any of the above, a pharmacist, using professional
16 judgment, shall take appropriate steps to avoid or resolve the potential problem[,
17 which] may include requesting and reviewing a controlled substance prescription
18 monitoring [program] report [(PMP)] . . . , consulting with the prescriber and
19 counseling the patient.” 16.19.4.16(D)(2) NMAC.
27 1 {36} The New Mexico Administrative Code provides additional guidelines and
2 responsibilities applicable to opioid prescriptions, including that “[a] pharmacist shall
3 use professional judgment based on prevailing standards of practice in determining
4 whether to obtain and review a PMP report before dispensing an opioid prescription
5 to that patient,” 16.19.4.16(E) NMAC; and further, “shall request and review a PMP
6 report covering at least a one[-]year time period” if the pharmacist, for example,
7 “becomes aware of a person currently exhibiting potential abuse or misuse of opioids
8 (i.e. over-utilization, early refills, multiple prescribers, appears overly sedated or
9 intoxicated upon presenting a prescription for an opioid . . . , or paying cash when the
10 patient has prescription insurance),” 16.19.4.16(E)(1)(a) NMAC; or the “pharmacist
11 receives an initial prescription for any long-acting opioid formulations,”
12 16.19.4.16(E)(1)(d) NMAC; or the “pharmacist becomes aware of a patient receiving
13 an opioid concurrently with a benzodiazepine[,]”16.19.4.16(E)(1)(e) NMAC. “Upon
14 recognizing any” of these conditions, “a pharmacist, using professional judgment,
15 shall take appropriate steps to avoid or resolve the potential problem[,]” which “may
16 include consulting with the prescriber and counseling the patient.” 16.19.4.16(E)(3)
17 NMAC. In addition, “a pharmacist shall use professional judgment base[d] on
18 prevailing standards of practice, in deciding the frequency of requesting and
19 reviewing further [PMP] reports . . . [e]xcept that PMP reports shall be reviewed a
28 1 minimum of once every three months during the continuous use of opioids for each
2 established patient.” 16.19.4.16(E)(4) NMAC.
3 {37} As noted, neither the motion nor Dr. Lee’s affidavit mentions any statutes,
4 although Plaintiff’s complaint does, in its allegations supporting the claim for
5 negligence per se. It is not for this Court to determine a professional standard of
6 conduct for pharmacists in these circumstances. Nevertheless, we conclude that a
7 party cannot establish a professional standard of care as a matter of law with an expert
8 affidavit that fails to account for law applicable to the professional and/or to the
9 particular circumstances in which the professional has acted or failed to act. Spencer,
10 2013-NMSC-010, ¶¶ 14-19 (holding that the New Mexico Rules of Professional
11 Conduct are relevant to establish the appropriate standard of conduct for attorneys
12 and that the determination of whether or not the defendant attorney conformed to the
13 standard of conduct required by those rules “will depend on the evidence introduced
14 at trial” and concluding that genuine issues of material fact existed concerning
15 whether the defendant attorney failed to exercise reasonable skill and care in his
16 representation of client).
17 {38} We recognize the existence of authority supporting the Pharmacy’s proffered
18 clerical-accuracy standard and the significance of policy concerns underlying that
19 standard, including the potential for pharmacists intruding into the doctor-patient
29 1 relationship or practicing medicine without a license and burdening pharmacists with
2 the responsibility of second-guessing the judgment of physicians in an effort to avoid
3 liability. See, e.g., Kowalski v. Rose Drugs of Dardanelle, Inc., 378 S.W.3d 109, 119-
4 20 (Ark. 2011); Eldridge v. Eli Lilly & Co., 485 N.E.2d 551, 552-55 (Ill. App. Ct.
5 1985); McKee v. Am. Home Prods. Corp., 782 P.2d 1045, 1051-53 (Wash. 1989) (en
6 banc). To be sure, there are very good reasons for such concerns. But a standard of
7 care that requires nothing more of pharmacists in the circumstances presented
8 here—involving repeated requests for high dosages of Schedule II opioids taken with
9 Schedule IV benzodiazepines—than that they accurately fill an apparently valid
10 prescription raises other policy concerns related to the potential harm to patients and
11 the public at large. These concerns are reflected in federal and state statutes and
12 regulations, such as those discussed above.
13 {39} We also note that other cases, which were not presented by the parties for the
14 district court’s consideration, have rejected the Pharmacy’s proffered clerical-
15 accuracy standard. See, e.g., Oleckna, 162 So. 3d at 182-83 (recognizing that, in a
16 case involving “early” fills of prescriptions for such drugs as Oxycodone and
17 Alprazolam, refusing “to interpret a pharmacist’s duty to use due and proper care in
18 filling the prescription as being satisfied by robotic compliance with the instructions
19 of the prescribing physician” and stating that in denying the pharmacy’s motion to
30 1 dismiss that the court was “unwilling to hold, as a matter of law, [the p]harmacy was
2 not negligent” (internal quotation marks and citation omitted)); Powers v. Thobhani,
3 903 So. 2d 275, 278-80 (Fla. Dist. Ct. App. 2005) (considering statutes and
4 regulations governing pharmacists in holding that the trial court erred in dismissing
5 negligence claims against pharmacies brought by the husband of customer who
6 overdosed on prescribed opioids and benzodiazepenes and noting that these statutes
7 and regulations provide a “strong policy basis” for imposing negligence liability on
8 a pharmacy “for failing to use due and proper care in filling prescriptions, even if the
9 prescription is filled in accordance with the physician’s instruction”); see also Lasley,
10 880 P.2d at 1134 (noting that where the plaintiff presented expert affidavit stating that
11 the pharmacist’s standard of care “includes a responsibility to advise a customer of
12 the addictive nature of a drug, to warn of the hazards of ingesting two or more drugs
13 that adversely interact with one another, and to discuss with the physician the
14 addictive nature of a prescribed drug and the dangers of long-term prescription of the
15 drug” and concluding that “[o]n this record, we cannot say as a matter of law that [the
16 pharmacy] did not breach the standard of care for the duty it owed to [the
17 customer]”); Horner, 1 S.W.3d at 522-24 (rejecting accuracy standard after
18 considering state and federal statutes related to the pharmacy profession and stating
31 1 that “[r]elegating a pharmacist to the role of order filler . . . fails to appreciate the role
2 recognized” in the state and federal statutes).
3 {40} Even if the motion did adduce facts sufficient to establish the standard of care
4 required in these circumstances, it did not establish a prima facie case that the
5 Pharmacy complied with that standard as a matter of law. The record also shows that
6 Lucero paid $1,107 for 90 Oxycontin 80 mg pills in September 2009 and contains an
7 October 2009 note by Dr. Maron with the subject “Rx FRAUD?” indicating receipt
8 of a call from a pharmacist reporting that Lucero had “presented to pharmacy for early
9 refill” and had offered to pay over $1,000 cash, despite that she would have received
10 the medication free via Medicaid three days later. The Administrative Code deems
11 as indicative of “potential abuse or misuse of opioids” such factors as “early refills”
12 and “paying cash when the patient has prescription insurance[.]” 16.19.4.16(E)(1)(a)
13 NMAC. For this reason alone, we cannot say that the Pharmacy demonstrated as a
14 matter of law that it “met all applicable standards of care which apply to the practice
15 of retail pharmacy[,]” as Dr. Lee concluded.
16 {41} In sum, Dr. Lee’s affidavit, which does not address any regulatory requirements
17 applicable to the practice of pharmacy, or to prescriptions for Schedule II drugs, or
18 to prescriptions for opioid medications, is insufficient to satisfy the Pharmacy’s
19 burden to demonstrate a prima facie case of entitlement to judgment as a matter of
32 1 law. See Brown, 1995-NMSC-050, ¶¶ 15-16 (reversing summary judgment because
2 the moving party failed to develop sufficient facts to satisfy “the burden of showing
3 the absence of any genuine issue of material fact, and also that the undisputed facts
4 supported judgment in its favor as a matter of law”). If, on remand, the Pharmacy
5 wishes to renew its motion for summary judgment based on the argument that it
6 fulfilled its duty to Lucero because it conformed its conduct to the standard of care
7 required in the circumstances presented here, it must adduce competent evidence that
8 accounts for statutes and regulations relevant to the professional responsibilities of
9 pharmacists filling prescriptions for the controlled substances at issue here.
10 3. The Record Shows Genuine Disputes of Material Fact Concerning the 11 Conduct Required of a Retail Pharmacist in These Circumstances and 12 Whether the Pharmacy’s Conduct Met the Requirements
13 {42} The Pharmacy’s failure to establish a prima facie case, standing alone,
14 mandates reversal of the district court’s entry of summary judgment in favor of the
15 Pharmacy. See, e.g., id. ¶ 8 (“[T]he non-moving party is not required to make any
16 showing with regard to factual issues” unless “the moving party has made a prima
17 facie case that it is entitled to summary judgment[.]” (internal quotation marks and
18 citation omitted)). Even if the Pharmacy had carried its burden, reversal is warranted
19 because the record viewed in the light most favorable to Plaintiff shows the existence
20 of genuine disputes of material facts concerning the conduct required of a retail
33 1 pharmacist in these circumstances (standard of care) and whether the Pharmacy’s
2 conduct met those requirements.
3 {43} The circumstances presented here involve repeated “early” fills of opioid
4 medications prescribed in combination with benzodiazepenes, and at least one
5 instance in which Lucero paid a substantial amount of cash to purchase Oxycontin
6 from the Pharmacy, although her prescriptions were paid with insurance on other
7 occasions. In addition, Plaintiff’s expert, Dr. O’Donnell, testified that “early”
8 prescription requests “are evidence of excessive use of the [c]ontrolled [s]ubstance,
9 in excess of the prescribed dose”; “[e]xcess use places the patient at risk ([of] death
10 or serious injury), increases abuse, dependence, and addiction, and may be evidence
11 of diversion”; and a pattern of “early” requests to fill prescriptions for a controlled
12 substance “is highly suspicious of abuse and[/]or diversion, and would preclude the
13 pharmacist” from filling the prescriptions.
14 {44} We disagree with the district court’s view that Dr. O’Donnell’s affidavit failed
15 to show the existence of a genuine dispute of material fact because it did not “take on
16 Dr. Lee.” The affidavit leaves much to be desired, but so does Dr. Lee’s affidavit.
17 Nevertheless, Dr. O’Donnell’s affidavit suffices to establish a genuine dispute about
18 the material issues of the applicable standard of care and the Pharmacy’s compliance
19 with that standard. See Trujillo, 1984-NMCA-050, ¶ 27 (“Expert testimony from a
34 1 qualified doctor in the same field, familiar with the circumstances of [the] defendant’s
2 practice, the standard of care of physicians, and the testimony of [the] plaintiff, is
3 generally sufficient to raise questions of material fact.”); Garcia-Montoya, 2001-
4 NMSC-003, ¶ 7 (“If there is the slightest doubt as to the existence of material factual
5 issues, summary judgment should be denied.” (internal quotation marks and citation
6 omitted)); Lasley, 880 P.2d at 1134 (concluding that “[o]n this record, we cannot say
7 as a matter of law that [the pharmacy] did not breach the standard of care for the duty
8 it owed to [the customer]” in light of expert affidavit concerning pharmacist’s
9 standard of care); Hooks, 642 N.E.2d at 519 (affirming denial of summary judgment
10 in pharmacy case after recognizing that “[w]hat constitutes due care in a particular
11 case will depend upon the circumstances of that case, and will usually be a question
12 of fact[,]” including such issues as “the frequency with which the pharmacist filled
13 prescriptions for the customer, any representations made by the customer, the
14 pharmacist’s access to historical data about the customer, the manner in which the
15 prescription was tendered to the pharmacists, and the like”); Dooley, 805 S.W.2d at
16 386 (“The fact that the pharmacy owes its customer a duty in dispensing prescription
17 drugs is without question. [The defendant] simply argues that the duty to warn of
18 potential drug interactions is not a part of its duty. The plaintiffs here have introduced
19 expert proof disputing this assertion. Therefore, whether the duty to warn of potential
35 1 drug interaction is included within the pharmacist’s duty to his customer is a disputed
2 issue of fact preventing the granting of summary judgment.”).
3 {45} The district court’s criticisms of Dr. O’Donnell’s affidavit reflect that the court
4 “took an overly technical view of the evidence which did not resolve all logical
5 inferences in favor of Plaintiff and did not view the facts in the light most favorable
6 to a trial on the merits.” Madrid v. Brinker Rest. Corp., 2016-NMSC-003, ¶ 23, 363
7 P.3d 1197.
8 4. The Pharmacy Did Not Address and the District Court Did Not Rule on 9 the Claim for Negligence Per Se
10 {46} To support a claim for negligence per se (as distinct from a negligence claim)
11 “the regulation or statute at issue must specify a duty that is distinguishable from the
12 ordinary standard of care[,]” rather than “impose general duties[.]” Thompson, 2012-
13 NMCA-014, ¶¶ 32-33; see Heath, 2008-NMSC-017, ¶ 21 (explaining that, to support
14 a claim for negligence per se, a statute or regulation must “contain a specific standard
15 of care that does not merely repeat the common law standard”).
16 {47} The Pharmacy’s motion did not discuss (or even cite) any statutes or
17 regulations. Nor were any specific statutes or regulations cited in Dr. Lee’s affidavit
18 or in the Pharmacy’s reply brief. The motion also made no mention of the case law
19 discussing the requirements for claims of negligence per se. The Pharmacy’s
20 argument on the point in its brief in this Court merely highlights the absence of any
36 1 such argument in its motion. We reject the Pharmacy’s attempt to convince us that its
2 motion demonstrated a prima facie case of entitlement to summary judgment on this
3 claim and that the district court actually considered this claim in granting summary
4 judgment. The mere fact that statutes and regulations were discussed at the motion
5 hearing proves nothing.
6 {48} We hold that the dismissal of the Pharmacy from the case was improper
7 because the motion did not demonstrate the Pharmacy’s entitlement to summary
8 judgment on the separate and distinct claim of negligence per se, and the district court
9 did not decide the issue.
10 CONCLUSION
11 {49} For the reasons set forth herein, we reverse and remand for proceedings
12 consistent with this opinion.
13 {50} IT IS SO ORDERED.
14 _______________________________ 15 LINDA M. VANZI, Chief Judge
16 WE CONCUR:
17 _________________________________ 18 JAMES J. WECHSLER, Judge
19 _________________________________ 20 J. MILES HANISEE, Judge
Oakey v. May Maple Pharmacy, Inc. (Oakey v. May Maple Pharmacy, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.