2004 FATAL CRASH: Lawyer says pharmacists liable

(ED VOGEL, reviewjournal.com)A Southern Nevada lawyer told the state Supreme Court on Monday that pharmacists, at the least, had a duty to call physicians to voice their concerns before dispensing a narcotic painkiller to a woman who killed a man in a 2004 vehicle crash in Las Vegas.

“They had a duty to control her conduct,” lawyer Phil Aurbach told justices. “They had absolute knowledge that prescription abuse was involved.”

Aurbach said pharmacists continued to fill prescriptions for Patricia Copening even after being warned by a state task force that she might be a prescription drug abuser.

Copening killed 21-year-old Gregory Sanchez Jr. in a June 4, 2004, crash on U.S. Highway 95.

Aurbach asked justices to reinstate the wrongful death case he seeks to file against seven chain-store pharmacies who filled Copening’s prescriptions.

District Judge Douglas Herndon earlier threw out the case on the grounds that the pharmacies were not legally liable in the crash.

The Supreme Court made no decision Monday. Justices Mark Gibbons and Jim Hardesty made comments seemingly in support of Aurbach’s position.

Gibbons said a doctor mistakenly might prescribe strychnine that would kill the user. Then Gibbons posed the questions: “Does the pharmacist just fill it and let someone die? Or does the pharmacist call the doctor to see if that is what you intended?”

Aurbach represents the families of Sanchez and Robert Martinez.

Sanchez, a father of two, was killed and Martinez severely injured in the crash. Sanchez had pulled his vehicle off U.S. 95 after it had a flat tire, and Martinez pulled his car behind him to help change the tire.

Their vehicles were struck by a vehicle driven by Copening, who was found to be under the influence of hydrocodone, a narcotic pain reliever. She spent nine months in jail as a result.

An investigation found many different pharmacies had filled prescriptions for 4,800 tablets of the drug for Copening in the 13 months before the crash.

Aurbach said the pharmacies continued to fill her prescriptions even though the Nevada Prescription Controlled Substance Abuse Task Force notified them that Copening was “taking an unusual amount of these narcotics.”

Aurbach said the woman received 1,000 to 1,600 additional tablets of hydrocodone after the notice was given to pharmacies.

“Some of them threw it away,” Aurbach said about the notice. “None of them made a note (in their records) that Patricia Copening may have a narcotics abuse problem.”

Aurbach wants to sue pharmacies operated by Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy.

In defending the pharmacies, lawyer Mike Wall said Aurbach had been shopping around for “deep pockets” before deciding on suing pharmacies.

Wall said the pharmacists have the same protection as bartenders.

Under court decisions and the state “dram shop” law, bartenders are not liable if the people to whom they serve drinks are later involved in crashes in which others are injured or killed.

Wall said a pharmacist is not there to “second-guess a registered physician.”

He said that even if pharmacists had called the physicians after being given prescriptions for Copening, they probably would not have canceled the prescriptions.

At the time of the crash, Copening was driving a vehicle owned by OB/GYN Associates.

The license of one of that business’s owners, Dr. D.S. Steele, was revoked for various reasons, including giving Copening prescriptions while they were involved in a sexual relationship.

“A call to a doctor would have done nothing anyway,” Wall said. “There is no indication it would have any effect whatsoever.”

Nonetheless, Hardesty said that because of the state task force notice that Copening might be a prescription drug abuser, pharmacists had a reason to call doctors about her prescriptions.