Following what it referred to as “the modern trend of case law,” the Supreme Court of Nevada recently reversed dismissal of a case brought against a pharmacy for failure to warn. The court ruled that the trial judge had erred when she determined that a pharmacist’s only duty is to process prescriptions with technical accuracy. The court held 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.” A patient visited her physician for the first time in 2005 and noted in her paperwork that she might have a sulfa allergy. In 2006, the physician diagnosed the patient with a urinary tract infection and told her that he would normally prescribe a sulfa product as the most effective treatment. According to the court, the patient downplayed her sulfa allergy and asked the physician to prescribe a sulfa product. The patient dropped off her prescription at her pharmacy. Later that day, the patient’s caretaker came to the pharmacy to pick up the medication. The caretaker was told that the pharmacy’s computer had flagged the prescription due to information indicating that the patient had a sulfa allergy. The caretaker asked that the pharmacy contact the patient directly. A pharmacist called the patient, who said that she had previously used the prescribed product without any adverse effects. Satisfied with this explanation, the pharmacist overrode the computer, and the medication was released to the patient’s caregiver. The patient suffered an allergic reaction to the medication and died. Her two children sued the physician and the pharmacy. They contended that the dispensing pharmacist breached her duty of care by failing to warn the patient adequately of the medication’s risks or, alternatively, to call the physician and clarify whether he really meant to prescribe a medication to which the patient was allergic. The physician settled his case, and the pharmacy was dismissed from its case by the trial judge who ruled 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.” The patient’s children appealed. On appeal, the Nevada Supreme Court cited the learned intermediary doctrine to establish that a pharmacist has no duty to warn of a prescribed medication’s generalized risks. The court then held that “the learned intermediary doctrine does not insulate a pharmacist from liability when he or she has knowledge of a customer-specific risk. Instead, when a pharmacist has such knowledge, the pharmacist has a duty to warn the customer or to notify the prescribing doctor of the customer-specific risk.” The court reversed dismissal of the case and remanded the case to the trial court for further proceedings. The result in this case continued the judicial retreat from the “no duty to warn” perspective that was solidly in place for pharmacists as recently as 2 decades ago but has been steadily eroding over the intervening years. In this case, the court recognized that pharmacists have responsibilities beyond technical accuracy in order processing when pharmacists have specific knowledge of risks posed to patients by prescribed medications. Pharmacists are not required to provide general warnings of all risks for all prescribed medications, however. Such a requirement would be alarming and counterproductive for patients and would place unnecessary burdens on pharmacists. The duty to warn for pharmacists focuses on the patient rather than on the drug and is triggered when a pharmacist knows of a particular risk to a specific patient. The risk management strategy for the pharmacist in meeting this duty is presented as an alternative: Either the pharmacist must counsel the patient about the risk, or the pharmacist must clarify the order with the prescriber. In the Nevada case, although the law was applied unfavorably for the pharmacy, the facts of the case appear to be more encouraging. According to the court, the patient was aware of the potential for allergic reaction, having discussed it with both her physician and pharmacist, yet she accepted the risk that the reaction could occur. A question of fact remains regarding whether the pharmacist’s warning was adequate, but there seems to be no dispute that a warning was given. A warning to the physician would likely have been of little consequence, as the physician already knew of the patient’s recorded allergy. While the pharmacy has lost on a legal ruling, it may very well win on the facts. Based on: Klasch v Walgreens, 2011 Nev. LEXIS 93 (November 23, 2011).