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.
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.
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
A Walgreens employee called Klasch and conveyed that her prescription had been flagged because of her sulfa allergy. In response, Klasch reportedly indicated that she had taken Bactrim in the past and that she had not experienced any adverse reaction to it. Satisfied with this clarification, a pharmacist then manually overrode the computer system's flag, and the prescription was released to Klasch's caretaker.
Later that day, after taking the medication, Klasch complained that she felt "itchy." The following day, Klasch called Dr. Tanenggee's office and left a voice mail in which she stated that she was wrong about not having a sulfa allergy. Klasch's condition continued to worsen, and she was taken to the emergency room. After being diagnosed with SJS/TEN, Klasch was transferred to a burn center, where she eventually lapsed into a coma and passed away. At the time Klasch was removed from life support, she had burns covering 40 to 50 percent of her body.
Klasch's two children (the Klasches) brought a wrongful-death action against Walgreens, alleging that its pharmacist breached the duty of care owed to their mother. Specifically, the Klasches contended that Walgreens' pharmacist breached her duty of care by failing to adequately warn Klasch of the prescribed medication's risks in light of her allergy to it or, alternatively, by failing to call Dr. Tanenggee to clarify whether he really meant to prescribe a medication to which she was allergic.
Walgreens filed a motion for summary judgment, contending that in a majority of jurisdictions, the learned-intermediary doctrine limits a pharmacist's duty to do anything more than correctly fill prescriptions as written. Walgreens contended that since its pharmacist had filled Klasch's prescription with the correct medication and dosage, it had, as a matter of law, fulfilled its duty to her.
Following what it perceived to be the "majority rule," the district court granted Walgreens' summary judgment motion on the basis that "the pharmacist's limited duty is to properly fill the prescription, as written by the physician, unless there is plain error or the prescription is obviously fatal." This appeal followed.
Although this court has not previously considered the learned-intermediary doctrine, the issues raised in this appeal compel us to consider its applicability and scope. In so doing, we first adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation and hold that pharmacists
We next consider whether the learned-intermediary doctrine likewise insulates a pharmacist from liability when he or she has knowledge of a customer-specific risk. Following the modern trend of case law, we conclude that the learned-intermediary doctrine does not foreclose a pharmacist's potential for liability when the pharmacist has knowledge of a customer-specific risk. Instead, under these circumstances, a pharmacist has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of the risk. Because factual issues remain in this case regarding breach of duty and causation of injury, we reverse the district court's summary judgment in favor of Walgreens and remand this case to the district court.
We review an appeal from an order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate "when the pleadings and other evidence on file demonstrate that no genuine issue as to any material fact remains and that the moving party is entitled to a judgment as a matter of law." Id. (quotation omitted). When reviewing a motion for summary judgment, "the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party." Id.
To prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Sanchez v. Wal-Mart Stores, 125 Nev. ___, ___, 221 P.3d 1276, 1280 (2009). At issue in this case is the interplay between the first two elements: the scope of Walgreens' duty, and whether it may have breached this duty. Walgreens acknowledges that it owed the Klasches' mother a duty to correctly fill her prescription, but contends that it did not owe her a duty to warn her of the risk the medication posed to her or to notify her prescribing doctor of that risk. Walgreens contends that these additional duties would be foreclosed under the learned-intermediary doctrine.
Traditionally, the learned-intermediary doctrine has been used to insulate drug manufacturers from liability in products-liability lawsuits.
Because we believe that these public-policy considerations are sound, we adopt the learned-intermediary doctrine in the context of pharmacist/customer tort litigation. Accordingly, Nevada pharmacists have no duty to warn their customers of the generalized risks inherent in the prescriptions they fill.
Having adopted the learned-intermediary doctrine, we next define its scope. To this end, we find the Supreme Court of Illinois' decision in Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118 (2002), to be particularly instructive. In Happel, a customer with an aspirin allergy requested that Wal-Mart fill her prescription for Toradol, a drug that, unbeknownst to the customer, was contraindicated for people with aspirin allergies.
After taking the medication and suffering injuries, the customer brought a negligence action against Wal-Mart, contending that its pharmacist had breached her duty of care by failing to warn the customer's husband that the Toradol prescription was contraindicated for people with aspirin allergies. Id., 262 Ill.Dec. 815, 766 N.E.2d at 1122. The trial court granted Wal-Mart's summary judgment motion on the basis that Wal-Mart had no duty to warn of the drug's risks. Id.
On appeal to the Supreme Court of Illinois, Wal-Mart contended that the learned-intermediary doctrine foreclosed any duty to warn the customer of the drug's risks and that the trial court had therefore properly granted it summary judgment. Id., 262 Ill.Dec. 815,
In reaching this conclusion, the Happel court first explained that the purpose behind the doctrine was to prevent a pharmacist from interjecting himself into the doctor-patient relationship, which would, in essence, force the pharmacist to "practice medicine without a license." Id. (quotation omitted). In spite of this general rule, however, the court went on to conclude that "[t]hese reasons for not imposing a duty to warn on pharmacists do not apply in the instant case." Id. Specifically, the court pointed to the fact that Wal-Mart "was aware not only of [the customer's] drug allergies, but also that Toradol was contraindicated for persons . . . with allergies to aspirin." Id. Given these facts, the Happel court concluded that "[i]mposing a duty to warn of this contraindication would not require the pharmacist to learn the customer's condition and monitor his drug usage," nor would it force the pharmacist to "practice medicine without a license." Id., 262 Ill.Dec. 815, 766 N.E.2d at 1128 (quotations omitted).
Having concluded that the public-policy considerations behind the learned-intermediary doctrine are less persuasive when a pharmacist has knowledge of a customer-specific risk with respect to a prescribed medication, the Happel court concluded that Wal-Mart indeed owed its customer a duty. In remanding the case to the trial court, the Happel court framed Wal-Mart's duty as follows:
Id., 262 Ill.Dec. 815, 766 N.E.2d at 1129. See Walton v. Bayer Corp., 643 F.3d 994, 1000 (7th Cir.2011) ("What a pharmacy sometimes knows, however, without investigation, . . . and even a treating physician may not know, is susceptibilities of particular customers of the pharmacy to the side effects of a drug that it sells them—susceptibilities because of other drugs that the pharmacy knows the customer is taking, or a pre-existing physical or mental condition (again known to it) that makes the drug contraindicated for the customer—and then it must warn either the customer or his physician. But not otherwise." (citations omitted)).
We find the analysis of the Happel court persuasive. Consistent with the Supreme Court of Illinois and what we perceive to be the modern trend of case law, we hold that the learned-intermediary doctrine does not insulate a pharmacist from liability when he or she has knowledge of a customer-specific risk.
Having adopted the learned-intermediary doctrine and defined its scope, we consider its application to the facts of this case. Here, the Klasches contend that Walgreens' pharmacist breached her duty of care by failing to adequately convey the potential danger inherent in a person with a sulfa allergy taking a sulfa-based medication. Because a sulfa allergy is not the type of generalized risk for which the learned-intermediary doctrine insulates a pharmacist
Walgreens contends, however, that it discharged its duty when one of its employees phoned Klasch and relayed the contents of its computer system to her. Walgreens further argues that, even assuming duty and breach, it did not cause Klasch injury because her prescribing doctor knew she might have a sulfa allergy yet prescribed Bactrim anyway.
The difficulty with these arguments is that, while Walgreens presented a fully supported summary judgment motion on the basis that it had no duty beyond correctly filling a nonobviously fatal prescription, its motion made only passing reference to breach of duty and causation of injury, and did so mainly in reply. Breach of duty and causation are classically questions of fact. Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993); Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981).
Complicating matters further, the expert depositions were not completed until after briefing concluded, and the district court rejected the Klasches' supplemental opposition even though Walgreens stipulated to its filing. Given our rejection of Walgreens' principal argument that it had no duty as a matter of law, which materially changes the issues presented by the summary judgment motion, we conclude that potential factual issues remain that preclude affirming the district court's summary judgment at this point.
By insulating pharmacists from liability for failing to warn their customers of a medication's generalized risks, the learned-intermediary doctrine prevents pharmacists from interfering with the doctor-patient relationship. Because the public-policy considerations behind this doctrine are sound, we adopt it in the context of pharmacist/customer tort litigation. These public-policy considerations are less persuasive, however, when a pharmacist has knowledge of a customer-specific risk with respect to a prescribed medication. Accordingly, in such circumstances, the learned-intermediary doctrine does not insulate a pharmacist from liability, and the pharmacist instead has a duty to exercise reasonable care in warning the customer or notifying the prescribing doctor of this risk. Because factual issues remain in this case as to breach of duty and causation of injury, we reverse the district court's summary judgment in favor of Walgreens and remand this case to the district court for proceedings consistent with this opinion.
We concur: SAITTA, C.J., and DOUGLAS, CHERRY, GIBBONS, PICKERING, and HARDESTY, JJ.