Ehrlich Law Firm
Jesse M. Sbaih & Associates, Ltd.
Phillips, Spallas & Angstadt, LLC
John H. Cotton & Associates, Ltd.
ORDER AFFIRMING IN PART. REVERSING IN PART AND REMANDING
This is an appeal from a district court summary judgment in a medical malpractice and negligence action. Fifth Judicial District Court, Nye County; Robert W. Lane, Judge.
Warner Kerns (the decedent) received treatment from respondents Dr. Walter J. Hoppe, D.O., David Armitage, PA–C, and Desert Trails Medical, Inc. (collectively, the Medical Defendants), for a long history of intense knee pain resulting from multiple motorcycle accidents that led to narcotics dependence. The decedent's pain was managed through interchanging prescriptions for painkillers including Norco, OxyContin, Vicodin, and methadone as to not encourage addiction to any one medication. The goal was to use the medications for pain management purposes until the decedent had surgery. Because Desert Trails was not licensed as an addiction clinic, it could only prescribe these drugs for pain management purposes and not for addiction. However, in 2005, the Medical Defendants diagnosed the decedent with addiction to OxyContin. The Medical Defendants weaned the decedent off OxyContin over a seven-day period and replaced it with methadone that was then to be slowly decreased until the decedent was off of both medicines. While the decedent was receiving painkillers from the Medical Defendants, he ‘doctor shopped’ by visiting other physicians to procure extra narcotics. He then filled these prescriptions at various pharmacies. In the years leading up to the decedent's death, Desert Trails and three of the decedent's other medical providers had the decedent sign narcotics contracts acknowledging that it is illegal to obtain multiple prescriptions from various doctors and that it might endanger his health. The contracts also stated that the decedent would not request or accept controlled substances from any other medical providers. Subsequently, the decedent died in his sleep from methadone intoxication. The methadone was prescribed to him at Desert Trails. It was unknown whether the decedent was taking his prescribed dose of the methadone at the time of his death because the decedent's widow, appellant Stephanie Kerns (Kerns), refused to look for the pill bottles. Kerns was asked to produce the pills on two separate occasions and her response was that she did not look for the pill bottles and does not know of the pill bottles whereabouts.
Dr. Hoppe passed away shortly after litigation was initiated and his estate is represented in this appeal by respondent Patty Hoppe.
After the decedent's death, Kerns sued the physicians and pharmacy that provided the decedent with the methadone pills. Kerns asserted claims for medical malpractice, negligence, and statutory violations against respondents Wal–Mart Stores, Inc., and various Wal–Mart pharmacists (collectively, the Pharmacy Defendants), in addition to the Medical Defendants. Kerns accused respondents of providing medications to an addict in violation of state and federal law. Because the pharmacy was not a Drug Enforcement Administration (DEA)-registered narcotics-treatment program, it could only legally fill methadone prescriptions for treating pain—not narcotics addiction.
Respondents moved for, and the district court granted, summary judgment in their favor, finding that the decedent assumed the risk of his death by abusing the various drugs prescribed to him, and that Kerns failed to prove that respondents' actions in prescribing and dispensing the medication to the decedent were the cause of his death. In addition, in the event that summary judgment is reversed on appeal, the district court issued an order granting the Medical Defendants an adverse-inference instruction at trial because of Kerns' failure to attempt to locate the pill bottles.
The parties are familiar with the facts, and we do not recount them further except as necessary to our disposition.
On appeal, Kerns argues that the district court erred in granting summary judgment in favor of respondents. Kerns also argues that the district court abused its discretion in concluding that, if its grant of summary judgment is reversed on appeal, any jury hearing the case shall be given an adverse-inference instruction that the decedent, prior to his death, took more of the prescription drugs than he was instructed.
When handwriting analysis revealed that Armitage may have forged Dr. Hoppe's signature on the notes that authorized treating the decedent's opioid addiction with methadone, Kerns amended the complaint to add a claim against Armitage for fraud and violation of NRS 630.3062, which prohibits tampering with medical records. Kerns contends that the order granting summary judgment did not dispose of these claims. However, as NRS 630.3062 does not expressly or impliedly afford a private cause of action for individuals or patients affected by medical record tampering, Kerns is unable to pursue this claim. See Baldonado v. Wynn Las Vegas, 124 Nev. 951, 958–60, 194 P.3d 96, 100–02 (2008). Because no private remedy may be implied under NRS 630.3062 by this court, Kerns had no right to obtain relief in the district court. Moreover, we conclude that Kerns waived any separate fraud claim by failing to raise it before the district court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.”).
We conclude that the district court erred in granting summary judgment based on both the assumption of risk doctrine and causation concerning the alleged negligence of the Medical Defendants. However, we conclude that the district court appropriately granted summary judgment on the claims against the Pharmacy Defendants. We further conclude that the district court properly decided that an adverse-inference instruction should be given upon remand should this case proceed to trial.
This court reviews an order granting summary judgment de novo. Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713, 57 P.3d 82, 87 (2002). “Summary judgment is appropriate ... when the pleadings [and other evidence in the record] demonstrate that no genuine issue of material fact [remains], and the moving party is entitled to judgment as a matter of law.” Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005) ; NRCP 56(c). Under NRCP 56, the burden of proving that there is no genuine issue of material fact lies with the moving party. Maine v. Stewart, 109 Nev. 721, 726–27, 857 P.2d 755, 758 (1993). However, once the moving party satisfies his or her burden as required by NRCP 56, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. at 727, 857 P.2d at 759. “[W]hen 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.” Wood, 121 Nev. at 729, 121 P.3d at 1029.
The district court's factual findings are given deference and will be upheld “unless they are clearly erroneous and not based on substantial evidence.” International Fid. Ins. v. State of Nevada, 122 Nev. 39, 42, 126 P.3d 1133, 1134–35 (2006). “Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.” Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 141 (2008).
Assumption of riskKerns argues that the fact that the decedent knowingly encountered the dangers posed by abusing prescription drugs does not provide respondents with a complete defense to negligently and illegally providing him with methadone. Kerns contends that respondents cannot invoke express assumption of risk by relying on the narcotics contracts signed by the decedent when the contracts do not purport to release respondents from liability for the negligence that took the decedent's life. Kerns also argues that the question of whether the decedent willfully encountered a known risk and what portion of fault he should bear if he did are factual issues that must be submitted to a jury. We agree and conclude that the district court erred in granting summary judgment on this issue.
Generally, assumption of risk is classified into three categories—express, implied primary, and implied secondary assumption of risk. Turner v. Mandalay Sports Entm't, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). Both express and primary implied assumption of risk are at issue here. We will discuss each in turn.
Express assumption of risk“Express assumption of risk ... stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.” Mizushima v. Sunset Ranch. 103 Nev. 259, 262, 737 P.2d 1158, 1159 (1987), overruled on other grounds by Turner v. Mandalay Sports Entm't, 124 Nev. 213, 219–21, 180 P.3d 1172, 1176–77 (2008). An agreement dealing with the express assumption of risk is governed by the law of contracts and will generally be enforced unless it: (1) is barred by an applicable statue, (2) extends protection to willful or gross negligence, or (3) otherwise offends public policy. 57B Am.Jur.2d Negligence § 766 (2004). To form the predicate for express assumption of the risk, a document must indicate that the plaintiff agrees to assume the risk of injury caused by the other party's negligence. Mizushima, 103 Nev. at 264, 737 P.2d at 1161.
Here, the decedent signed numerous narcotics contracts that provided that he would not request or accept controlled substances from any other medical providers and would only receive prescriptions from the doctor providing the contract. The Desert Trails narcotics contract informed the decedent that abusing his medications was dangerous and warned him that his medical providers would terminate his treatment and report him to the police if they became aware of any abuse.
Acknowledgement of a risk is not enough for an express assumption of risk—the decedent must have agreed to assume the risk of injury caused by respondents' negligence, if any, in prescribing and dispensing him the methadone that caused his death. From the language of the narcotics contracts, there is no reason that the decedent would have the expectation that he was assuming the risk of injury caused by any negligent conduct on the part of respondents. The form contracts did not act as formal instruments to reapportion legal liability or to forfeit future legal remedies for medical malpractice. See Hurst v. Lexington–Fayette Urban County Government, 446 F.Supp.2d 739, 739–41 (E.D.Ky.2006) (a prison release form for the return of confiscated property did not purport to waive any claim based on personal injury or negligence as it only waived liability for property damage); Mizushima, 103 Nev. at 264, 737 P.2d at 1161 (determining that a sign-up sheet that contained assumption of risk language did not result in an express assumption of risk when the form did not indicate that there was assumption of risk for the defendant's negligence). Accordingly, we conclude that because the language of the contract did not clearly indicate that the decedent was assuming the risk of injury caused by any negligent conduct on the part of respondents, no express assumption of risk occurred.
Primary implied assumption of riskPrimary implied assumption of risk “arises when ‘the plaintiff impliedly assumes those risks that are inherent in a particular activity.’ “ Turner, 124 Nev. at 220, 180 P.3d at 1177 (quoting Davenport v. Cotton Hope Plantation, 333 S.C. 71, 508 S.E.2d 565, 570 (S.C.1998) ). Implied assumption of risk is based on a theory of consent and contains two elements: “(1) voluntary exposure to danger, and (2) actual knowledge of the risk assumed.” Sierra Pacific v. Anderson, 77 Nev. 68, 71, 358 P.2d 892, 894 (1961) (internal quotations omitted). The knowledge inquiry is a subjective one, and is only satisfied if it is shown that the plaintiff both knew of and fully appreciated the risk at issue. Id. at 71–72, 358 P.2d at 894. “[T]he primary implied assumption of risk doctrine merely ‘goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.’ “ Turner, 124 Nev. at 221, 180 P.3d at 1177 (quoting Davenport, 508 S.E.2d at 570).
We conclude that there is a genuine issue of material fact as to whether the decedent knew of and fully appreciated the risks of doctor shopping in order to procure drugs to feed his addiction. The decedent was a man of 31 years who had been warned of the risks of death or injury that can result from narcotic-seeking behavior by at least four doctors when presented with the narcotics contracts. However, expert testimony was provided that he was not adequately counseled by the Medical Defendants, such that he did not fully understand the risks to his health.
Kerns cites to Argus v. Scheppegrell, 472 So.2d 573, 574 (La.1985), for the assertion that “[t]he patient's conduct cannot be, at the same time, both the foreseen risk which imposes the duty on the physician and the defense which totally excuses the physician's breach of that very duty.” The Louisiana Supreme Court concluded that “when the rule of law which gave rise to a duty was specifically designed to protect the victim against the risk of his own negligence, recovery should not be absolutely barred for the injury or death which the rule of law was designed to prevent.” Id. at 577. While we recognize that there are factual differences in this case and in Argus, we agree with these underlying principles. Drug-seeking behavior by a patient cannot automatically relieve a physician from a duty to monitor the patient for signs of abuse or addiction and to decline to prescribe the medications when addiction is suspected. To decide otherwise would render meaningless a physician's statutory obligations. See 21 C .F.R. § 1306.07(a) ; NAC 630.230(1) ; NRS 453.226(1) ; NRS 453.231.
Accordingly, while the decedent knowingly acquired numerous medications in the weeks prior to his death, issues of material fact remain as to whether he was fully apprised of the risks of injury or death by the Medical Defendants such that he could have assumed them under primary implied assumption of risk. Thus, we conclude that the district court erred in granting summary judgment on this issue.
Medical malpracticeKerns argues that the district court erred in concluding that the possibility that the decedent took more than his prescribed methadone dosage legally foreclosed proximate causation. Kerns contends that whether the decedent took more than his prescribed dose of methadone is a triable issue of fact and argues that she has provided substantial evidence that the highly dangerous cocktail of drugs that respondents provided the decedent with in an unsupervised manner caused his death. Kerns contends that even if the decedent exceeded his dosages, respondents still cannot escape liability as they illegally prescribed and dispensed methadone to the decedent.
To prevail on a medical malpractice action, the plaintiff must establish the following: (1) that the doctor's conduct departed from the accepted standard of medical care or practice, (2) that the doctor's conduct was both the actual and proximate cause of the plaintiff's injury, and (3) that the plaintiff suffered damages. Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996) ; Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590–91 (1991). “Negligence is never presumed but must be established by substantial evidence.” Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684 (1962). To establish proximate causation, the injury must appear to be the natural and probable consequence of the negligence, and it ought to have been foreseen in light of the attending circumstances. Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998). Medical malpractice cases require expert testimony to make this showing. See NRS 41A.100 ; see also Bronneke v. Rutherford, 120 Nev. 230, 235 n. 9, 89 P.3d 40, 44 n. 9 (2004). A medical expert's opinion regarding causation of an injury or disease and standard of care must be stated to a reasonable degree of medical probability. Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 158, 111 P.3d 1112, 1116 (2005).
“The courts are reluctant to grant summary judgment in negligence cases because foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the jury.” Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970). Additionally, “[i]n Nevada, issues of negligence and proximate cause are considered issues of fact and not of law, and thus they are for the jury to resolve.” Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). However, summary judgment is proper when the plaintiff cannot recover as a matter of law. Thomas, 86 Nev. at 13, 462 P.2d at 1022.
The Medical DefendantsKerns contends that if the Medical Defendants had complied with NAC 630.187 after labeling the decedent an addict and referred the decedent to addiction experts for a specialized evaluation and treatment, then the decedent would have received the supervision needed to prevent any misuse of his prescriptions. Kerns points out that neither Armitage, Dr. Hoppe, nor Desert Trails were ever part of a certified narcotics-treatment program that could legally use methadone to treat addicts.
The relevant inquiry on appeal is whether Kerns presented competent expert testimony that tended to show to a reasonable medical probability that the Medical Defendants' allegedly negligent act of prescribing the decedent the methadone caused the decedent's death. Viewing the evidence in the light most favorable to Kerns, we conclude that Kerns demonstrated that there was a genuine issue of material fact as to causation.
Kerns provided testimonial evidence that the Medical Defendants breached the standard of care in prescribing an addict a high dosage of methadone while on a central nervous system depressant—OxyContin—in violation of state and federal law and without adequate monitoring and supervision. See 21 C.F.R. § 1306.07 (stating that in order for a practitioner to prescribe methadone to an addict without obtaining a DEA registration, the practitioner must submit a notification to the Secretary of Health and Human Services stating the practitioner's intent to dispense or prescribe narcotic drugs and comply with 21 C.F.R. § 1301.28 ); NRS 453.226 (requiring that every practitioner who dispenses or proposes to dispense any controlled substance within this State shall biennially register with the Nevada Board of Medical Examiners in accordance with its regulations.”); NRS 453.231 (requiring registration before dispensing a controlled substance or conducting research with respect to a controlled substance); NRS 453.056 (providing that the term “dispense” includes prescribing a controlled substance). If a person dispenses a controlled substance without being registered by the Board, that person is guilty of a category D felony. NRS 453.232. The Medical Defendants failed to send the decedent to an addiction specialist upon acknowledging that he was an addict, and instead prescribed him controlled substances without being properly registered or in compliance with the special regulatory standards imposed for such programs. The Medical Defendants presented expert testimony that the standard of care was not breached, however, “it is the jury's province to weigh the experts' credibility.” Prabhu v. Levine, 112 Nev. 1538, 1544, 930 P.2d 103, 108 (1996).
The Medical Defendants argue that regardless of their potential negligence, Kerns must still establish through expert testimony that any alleged negligent act caused the injury. While Kerns' only causation expert, Dr. Saeed Jortani, Ph.D., a pathologist, could only testify that it was possible that the decedent only took the prescribed doses, he also testified to a reasonable scientific probability that the methadone caused the decedent's death and that the prescribed amount could have killed him. He stated that methadone's therapeutic range and lethal range overlap almost directly on top of each other. Regardless of whether the decedent took the prescribed amount, the Medical Defendants still prescribed the methadone that ultimately caused his death. A natural and logical consequence of continuing to provide highly addictive controlled substances prescriptions to a patient that is suspected of being an addict is that the patient would abuse the drugs resulting in injury or death. See Taylor v. Silva, 96 Nev. 738, 741, 615 P.2d 970, 971 (1980) ( “A negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act.”). Under the circumstances of this case, a reasonable jury could find that the Medical Defendants' actions constituted a proximate cause of the decedent's death. Accordingly, we conclude that Kerns demonstrated that there was a genuine issue of material fact as to causation. Thus, the district court erred in granting summary judgment on this issue in regard to the Medical Defendants.
The Pharmacy DefendantsKerns argues that the foreseeable risk that the decedent would overdose made it negligent for the Pharmacy Defendants to illegally fill his prescription for methadone. Kerns contends that not only did the Pharmacy Defendants fail to check for the purpose of the drug, but also ignored two red flags—the prescription was for a high dosage and the pharmacy had dispensed a 30–day supply of OxyContin to the decedent only 11 days earlier.
The Pharmacy Defendants argue that the district court properly granted summary judgment in their favor because Kerns failed to establish causation—it was impossible to determine if the prescriptions filled by the Pharmacy Defendants caused the decedent's death. The Pharmacy Defendants contend that Kerns has failed to present any legal authority that provides that a pharmacy may be held liable to a customer for his or her overdose where it is undisputed that the pharmacy dispensed the medication exactly as prescribed by the doctor.
We conclude that Kerns failed to make the mandatory causation showing. While only pharmacies that are registered as narcotics-treatment programs can dispense methadone for treating addiction, there are no restrictions for a licensed pharmacy to fill methadone prescriptions for pain management. See 42 C.F.R. § 8.12 ; 21 C.F.R. § 1306.04(a) ; NRS 453.381. Pursuant to 21 C.F.R. § 1306.04(a) and NRS 453.381(4), a pharmacist must decline to fill a purported prescription if he or she has reason to believe that it was not issued in the usual course of professional practice or treatment. However, the evidence does not support that the prescription was not issued in the usual course of business such that the Pharmacy Defendants should have declined to fill the prescription.
Moreover, in Klasch v. Walgreen Co., 127 Nev. ––––, ––––, 264 P.3d 1155, 1157–58 (2011), this court adopted the learned-intermediary doctrine and held that pharmacists do not have a duty to warn a customer of the generalized risks inherent in a prescribed medication. It is up to the doctor who has knowledge of the patient's particular situation to convey any relevant safety information to that patient. Id. at ––––, 264 P.3d at 1158. The rationale behind this rule is “that between the doctor and the pharmacist, the doctor is in the best position to warn the customer of a given medication's generalized risks” and it “prevents pharmacists from constantly second-guessing a prescribing doctor's judgment simply in order to avoid his or her own liability to the customer.” Id. at ––––, 264 P.3d at 1159. “[T]he learned-intermediary doctrine preserves the pharmacist's role as a conduit for dispensing much-needed prescription medications.” Id .
While the pharmacists could have checked to see why the dosage for the methadone was high and why the OxyContin was dispensed to the decedent 11 days earlier, under the relevant statutes and our decision in Klasch, this was not required. “No civil or criminal liability or administrative sanction may be imposed on a pharmacist for action taken in good faith in reliance on a reasonable belief that an order purporting to be a prescription was issued by a practitioner in the usual course of professional treatment....” NRS 453.256(6). Accordingly, we affirm the grant of summary judgment as to the Pharmacy Defendants.
Kerns argues that the decedent's asthma, which created a higher risk of respiratory death from methadone, should have raised a red flag. However, there is no evidence that Wal–Mart pharmacists ever filled a prescription for the decedent for asthma or knew that he had asthma. See Klasch, 127 Nev. at ––––, 264 P.3d at 1158 (providing that where a pharmacist has knowledge of a customer-specific risk, the pharmacist has a duty to exercise reasonable care by warning the customer or notifying the prescribing doctor of the risk).
Adverse-inference instruction
The district court determined that, in the event of a reversal, an adverse inference instruction was permissible in that it would inform the jury that the decedent took more medicine than prescribed. Kerns takes issue with this determination and contends that the district court abused its discretion by granting the request when she was never in control of the decedent's pill bottles and the decedent was not on notice of a potential legal claim.
We conclude that in light of the fact that the decedent had control over the pills and then, when he passed away, Kerns had control over the premises containing the pills, that the adverse inference instruction may be proper. See Bass–Davis v. Davis, 122 Nev. 442, 447–49, 450–51, 134 P.3d 103, 106, 108–09 (2006) (noting that the district court has broad discretion to give an inference instruction that missing evidence would be adverse). Kerns was asked to produce the pills on two separate occasions and her response was that she did not look for the pill bottles and does not know of the pill bottles whereabouts. She was not obliging with the request and, in not searching for the pills, she caused them to be permanently lost. Because either the decedent or Kerns was the last person known to be in possession of the crucial pill bottle evidence, Kerns should bear the burden of its misplacement. See id. at 449, 134 P.3d at 107 (stating that a permissible inference instruction provides a “necessary mechanism for restoring the evidentiary balance ... the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss” (internal quotation omitted)). While Kerns claims that neither she nor the decedent knew that the pill bottles were relevant or were on notice of a potential legal claim, we conclude that both Kerns and the decedent were cognizant of the pill bottles' importance. See id. at 450, 134 P.3d at 108 (concluding that “a party is required to preserve documents, tangible items, and information relevant to litigation that are reasonably calculated to lead to the discovery of admissible evidence ... once a party is on ‘notice’ of a potential legal claim,” meaning that when litigation is reasonably foreseeable). The decedent knowingly procured multiple prescriptions from several doctors while cognizant of their danger and in doing that should have been able to foresee that his actions could have legal consequences. Moreover, Kerns was aware that the decedent died as a result of his medications and initiated the suit that has led to this appeal. Given these circumstances, it appears that a permissible adverse-inference instruction would balance the evidence and the district court would be within its discretion to give the adverse-inference instruction should this case proceed to trial upon remand.
All other issues on appeal lack merit.
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ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.
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