Secondary Assumption of Risk Applies To Drug-Seeking Patient

A patient went to a doctor complaining of pain. The doctor prescribed narcotics. The patient overdosed on the prescribed narcotics and died. The family of the decedent sued the defendants for negligence. The defendants filed a motion for summary judgment arguing that the patient engaged in drug-seeking behavior and therefore the doctrine of primary assumption of risk barred recovery. The district court judge granted the doctor’s motion for summary judgment. The plaintiffs appealed.


The Supreme Court of Nevada reversed and remanded the district court holding that it erred in granting summary judgment in favor of the defendants. The doctrine of primary assumption of risk applies where a plaintiff voluntarily accepts a relationship involving a lack of duty in the defendant and known risks which the plaintiff impliedly assumes. A doctor has a legal duty to provide reasonable care. Therefore, the court reasoned, the doctrine of primary assumption of risk cannot apply to a doctor-patient relationship.


The court held that the doctrine of secondary assumption of risk may apply when the patient engaged in drug-seeking behavior. If the plaintiffs establish a prima facie case of negligence against the defendants, then the defendants may argue that the decedent voluntarily exposed him or herself to the danger of a potential narcotic overdose and had actual knowledge of that risk by allegedly engaging in drug-seeking behavior. The case was not appropriate for summary judgment because the analysis for secondary implied assumption of the risk, being akin to comparative negligence, requires a factual determination that must be decided by a jury.


See: Marty ex rel. Marty v. Malin, 2012 WL 3139862 (Nev., July 31, 2012) (not designated for publication).