## Facts

- Warner Kerns suffered chronic knee pain from multiple motorcycle accidents and developed dependence on narcotic pain medication.
- Dr. Walter J. Hoppe, D.O., and physician assistant David Armitage treated Kerns at Desert Trails Medical, Inc., using alternating prescriptions (including Norco, OxyContin, Vicodin, and methadone) to manage pain.
- In 2005, the providers diagnosed Kerns with OxyContin addiction and attempted to transition him to methadone with a tapering plan; Desert Trails was not licensed as an addiction clinic.
- While receiving controlled-substance prescriptions from these providers, Kerns also obtained narcotics from other physicians (“doctor shopping”) and filled prescriptions at various pharmacies, including Wal-Mart.
- Kerns signed “narcotics contracts” acknowledging the illegality and health risks of obtaining duplicative prescriptions and agreeing not to seek controlled substances from other providers.
- Kerns died in his sleep from methadone intoxication; the methadone was prescribed by Desert Trails, and the precise dosage ingested was unclear due to missing pill bottles.
- Stephanie Kerns, as heir and estate representative, sued the medical providers for medical malpractice/negligence and sued Wal-Mart and pharmacy employees for negligence in dispensing, alleging the prescribing and dispensing caused Kerns’s death.
- The district court granted summary judgment for both the medical and pharmacy defendants; Kerns appealed.

## Issues

1. Whether summary judgment for the medical defendants was proper where patient misconduct (doctor shopping and contract violations) and disputed evidence on standard of care and causation existed.
2. Whether summary judgment for Wal-Mart and pharmacy employees was proper on claims that they negligently filled narcotic prescriptions.
3. Whether the decedent’s conduct constituted assumption of risk, superseding cause, or comparative negligence that barred recovery as a matter of law at the summary-judgment stage.

## Decision

- The Supreme Court of Nevada affirmed in part, reversed in part, and remanded.
- The court affirmed summary judgment for Wal-Mart and the pharmacy employees.
- The court reversed summary judgment in part as to the medical defendants and remanded because genuine issues of material fact existed, including on causation and comparative fault.

## Legal Principles

- Summary judgment is improper when genuine disputes of material fact remain, particularly on causation and comparative negligence in medical malpractice claims.
- Patient misconduct (including doctor shopping and violating controlled-substance agreements) generally bears on comparative negligence and causation and is commonly for the factfinder unless undisputed facts establish sole legal causation as a matter of law.
- Medical prescribers may retain professional duties in prescribing and monitoring controlled substances even when a patient is noncompliant or engaging in drug-seeking behavior.
- Pharmacies and pharmacists generally are not liable for filling facially valid prescriptions from licensed practitioners absent evidence of statutory/professional violations or clear dispensing “red flags” sufficient to create a triable issue of breach or causation.

## Conclusion

The court allowed malpractice claims against the treating medical providers to proceed because disputed facts remained about negligent prescribing and causal responsibility, but it ended the negligence claims against the pharmacy defendants due to insufficient evidence of a breached dispensing duty.


Kerns v. Hoppe, 128 Nev. 910 (Nev. 2012)