The South Dakota Supreme Court has ruled that a pharmacy is not liable under a theory of illegal drug dealing for the death of a man who overdosed on prescription morphine he had picked up for a disabled friend.

Shane Feistner used some of the morphine sulphate prescribed for his friend and, after also consuming a potentially toxic amount of a prescription tranquilizer, died of asphyxiation in July 2004. The guardian of his two children, Jeanna Schafer, sued Shopko Stores and the pharmacist at the store in Mitchell, S.D., where he filled the two prescriptions.

South Dakota's Drug Dealer Liability Act (DDLA) provides those harmed by the use of illegal drugs with a civil remedy against “Any person who knowingly participates in the illegal drug market.”

But the Supreme Court upheld a Davison County judge who summarily dismissed the case, finding that Shopko was protected by another law which allows a pharmacist to dispense a prescription drug order “to a patient or a patient’s agent[.]”

“Shopko met the requirements of the law,” the opinion concluded. “To interpret and apply the law as Schafer urges would make Shopko liable for a legal act. Such an interpretation is strained and would cause an absurd result.”

The case is the second this fall in which a novel attempt to impose liability on a pharmacy for a prescription drug overdose has failed. A Florida appeals court held in October that the family of a college freshman who died after ingesting Oxycontin could not sue the store where the painkiller was stolen.

Feistner filled two morphine prescriptions for Tully Knigge, who suffers from disabilities and chronic pain and is often unable to go to the drugstore himself. Knigge allowed his friend to crush and snort some of the morphine pills before and after delivering them to him.

The DDLA was intended to "establish a cause of action against drug dealers for damages." But Schafer argued that the law applied to Shopko because the pharmacist dispensed the morphine to someone other than its “ultimate user.”

South Dakota defines "ultimate user" as “a person who lawfully possesses a controlled drug or substance for personal use or for the use of a member of that person’s household” and a criminal statute provides that

No person other than a practitioner who is not a pharmacist, may dispense a controlled drug or substance included in Schedule II to an ultimate user without the written prescription of a practitioner who is not a pharmacist.

Justice Judith Meierhenry, writing for the Supreme Court, said Schafer had misconstrued the statute since it “expressly does not apply to pharmacists under these circumstances. The statute allows a licensed practitioner of the medical profession, who is not a pharmacist, to dispense drugs without a prescription to the ultimate user.”

“On the other hand, the law specifically allows pharmacists to dispense drugs with a prescription to a patient’s agent,” she noted, and “no provision of the DDLA provides, as Schafer argues, that a pharmacist may only legally dispense a controlled drug to an 'ultimate user' and not an agent.”

By Matthew Heller
11/12/07