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Was pharmacy responsible for woman’s overdose?

Copyright © 2017 Albuquerque Journal


Tawana Lucero, who died in 2009. (Courtesy of the Lucero Family) /

Tawana Lucero was desperate to have her prescription for Oxycontin filled.

So desperate, that she paid $1,107 for an “early” refill when it would have been free under Medicaid if she had waited three days.

Three months later, the 19-year-old woman died of an overdose of Oxycodone, Oxymorphone and Alprazolam at a rest stop on I-25 near Las Cruces – on her way to a federal court hearing in El Paso, where she faced charges of smuggling 99 pounds of marijuana from Ciudad Juárez into El Paso.

Lucero didn’t become a poster child for the opioid overdose crisis, but she has left a legacy of sorts in the form of a legal question that has yet to be resolved: Was the pharmacy responsible for her death because it filled the prescriptions – accurately – despite red flags of her addiction?

Earlier this year, the state Court of Appeals overturned a Bernalillo County District Court ruling that dismissed a lawsuit filed by Lucero’s estate against the pharmacy, which argued that it had done everything it was required to do by filling her lawful prescription and checking with her doctor.

The Appeals Court ruled that pharmacists owe their patients a higher standard of care than simply filling a doctor’s prescription accurately – what the court called a clerical accuracy standard – but didn’t say what that standard should be.

It sent the case back down to district court for further proceedings.

“We recognize the importance of this question, especially in light of the nation’s ongoing ‘opioid crisis,’ the subject of news reports and commentary almost daily,” Chief Judge Linda M. Vanzi wrote in the unanimous decision. “But the factual record and the law potentially relevant to this determination were not adequately developed … nor did the district court actually rule on the issue.”

“The court clearly rejected the ‘clerical accuracy standard’ argued by the pharmacy,” Mark Fine, attorney for Lucero’s estate, said in a telephone interview. “In the current opioid crisis, the court is questioning granting pharmacies the right to shell out these prescriptions with impunity.”

The office of the law firm that represents May Maple Pharmacy Inc. declined comment because the case is pending.

But R. Dale Tinker, executive director of the New Mexico Pharmacists Association, said pharmacists are caught in the middle.

“They are encouraged to fill legal prescriptions, but we have been working diligently with the state boards to strengthen the standards on prescribing and filling opioid prescriptions,” he said.

The case was sent back to District Judge C. Shannon Bacon, who had dismissed the claims of negligence against the pharmacy that filled Lucero’s prescriptions. The state Supreme Court declined to hear an appeal filed by the pharmacy.

Red flags

Tawana Lucero became a patient of Dr.John Tyson M.D. through the now defunct Doctor On Call LLC in May 2009 for “chronic pain and anxiety.”

Lucero had been in a car accident when she was 16 and complained that she suffered withdrawal symptoms when she didn’t have enough painkillers.

According to the lawsuit, Tyson ramped up her prescriptions for the drugs.

From May through November of 2009, she received 16 prescriptions from Tyson for drugs ranging from Oxycontin, Oxycodone and Xanax.

According to court records, Lucero had no known medical condition requiring the pain-killing opiates.

Tyson was one of the original defendants and settled out of court. His medical license lapsed while the case continued against the pharmacy.

At the time Tyson settled, Lucero’s estate was represented by her uncle. According to court documents, he absconded with the undisclosed settlement and can’t be found.

A new representative was appointed by the court to represent Lucero’s mother.

Several of the 30-day prescriptions Tyson wrote for Lucero were for 90 pills of 80-milligram Oxycontin, which is in the upper tier of Oxycontin strength.

Four of the prescriptions signed by Tyson indicated that they could be filled “early” or before the last prescription had lapsed.

According to the lawsuit, Lucero filled the prescriptions at May Maple Pharmacy.

Attorneys for Lucero’s estate said the “OK to fill early” prescriptions should have been one of several red flags to indicate that Lucero was abusing the drugs and that pharmacists at May Maple Pharmacy shouldn’t have handed over the narcotics to her.

Other red flags included that Lucero paid more than $1,107 cash for her prescription drugs when they would have been free under Medicaid if she waited three days. The size and the strength of the prescriptions were inordinately high, according to court filings.

There was also a note in her medical file indicating that a doctor had written a note with the subject “Rx Fraud?” indicating receipt of a call from an unidentified pharmacist reporting that Lucero had offered to pay more than $1,000 for a refill of her drugs.

Attorneys for the pharmacy argued that pharmacists have a duty to fill legally issued prescriptions and that the pharmacists checked with Tyson on more than one occasion.

Experts hired by both sides disagreed on what standard pharmacists need to meet when filling prescriptions for opioids.

In her Court of Appeals opinion, Judge Vanzi found that dismissing the case without deciding what standards the pharmacy needed to be held to left an insufficient basis for the Court of Appeals to uphold dismissing the pharmacy from the case.

Marijuana smuggling

In August 2009, Tawana Lucero and her mother, Teresa Lucero, were stopped at the port of entry in El Paso, driving a 1998 Ford Expedition.

During the stop, a Customs and Border Protection officer decided that Tawana Lucero was acting in a suspicious manner and referred the vehicle for a secondary inspection.

A drug-sniffing dog alerted on the car, and officers found hidden compartments with 99 taped bundles of marijuana strapped to the undercarriage of the Expedition.

Tawana Lucero, according to court records, told officers several different stories about how she came to be driving the car.

Teresa Lucero told officers they were going to be paid $3,000 to smuggle 30 pounds of marijuana and that they would receive instructions on where to deliver the drugs via cellphone once they cleared U.S. Customs.

They were both charged with conspiracy to smuggle and distribute marijuana.

Tawana Lucero was scheduled to appear in federal court in El Paso the day she overdosed.

Two weeks after her daughter’s death, Teresa Lucero was sentenced to two years in federal prison for conspiring to smuggle marijuana into the United States.

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