Earlier this month, the New Mexico Court of Appeals issued a decision (Oakey v. May Maple Pharmacy, Inc.) that should be required reading for all lawyers involved in professional negligence cases.

The lawsuit alleged that a pharmacy was negligent for prescribing excessive quantities of potentially addictive medications, such as Oxycodone, and ignoring signs that the patient was abusing them. The patient died of an overdose.

The pharmacy moved for summary judgment, supported by an expert affidavit stating generally that pharmacists satisfy the standard of care merely by filling facially valid prescriptions written by physicians, and that to impose any greater standard of care risked harmful interference with the physician-patient relationship. The affidavit “cited no statutes, regulations, or other authorities” in support of the expert’s proposed standard. The trial court granted summary judgment.

The Court of Appeals, in an opinion by Chief Judge Linda Vanzi, held that the expert’s affidavit did not establish a prima facie case for summary judgment. The Court noted that several New Mexico regulations imposed obligations on pharmacists to identify medication abuse and to take appropriate steps to resolve any problems, but the expert did not address any of these.

The Court held that “a party cannot establish a professional standard of care as a matter of law with an expert affidavit that fails to account for law applicable to the professional and/or to the particular circumstances in which the professional has acted or failed to act.”

The lesson from this case will likely apply to all professional negligence cases. If you want to move for summary judgment on the ground that your client has met the standard of care, your expert must address any applicable regulations or standards, and cannot simply say that in his or her opinion, the standard of care has been satisfied.