Board May Discipline Pharmacy for Negligence of Pharmacist

NOVEMBER 01, 2005
Larry M. Simonsmeier, JD, RPh

Issue of the Case

In this month's case, the North Carolina Court of Appeals was asked whether the Board of Pharmacy had the authority to discipline a pharmacy license holder for the negligence of one of its pharmacists.

Facts of the Case

The defendant pharmacy received a physician's prescription from a long-term care facility which called for "Dilantin (phenytoin) 100 mg capsules BID and Dilantin 50 mg BID." The dispensing pharmacist did not have Dilantin 50 mg in stock, so he dispensed liquid Dilantin with directions that read "10 cc = 50 mg." For the patient to receive the correct dose, however, the directions should have read "2 cc = 50 mg."

The patient took the dosage for 4 days and died 10 days later. It could not be determined whether the incorrect dosage of Dilantin caused or contributed to the death. When the Board of Pharmacy received information regarding the error, it conducted an investigation that revealed 4 other dispensing errors by the same pharmacist within that time frame.

The Board issued a notice to the pharmacy and the pharmacist that it intended to conduct a hearing regarding the 5 dispensing errors uncovered during their investigation. The purpose of the hearing was to determine whether the errors violated the laws governing the practice of pharmacy, thereby subjecting the pharmacy and pharmacist to the Board's disciplinary authority.

At the hearing, the pharmacy admitted to the allegations concerning the dispensing errors. The evidence presented showed that all of the errors had been committed by pharmacy technicians who worked under the supervision of the defendant pharmacist. The pharmacy also presented evidence that it terminated the pharmacist shortly after the errors were uncovered.

The Board of Pharmacy suspended both the pharmacist's license and the pharmacy's license for 7 days. The suspension of the pharmacy's license was stayed for 2 years as long as it complied with stated restrictions, including limitations on the number of prescriptions it could fill.

The pharmacy sought judicial review of the board's decision. It argued the Board had exceeded its statutory authority and improperly imputed to the pharmacy the findings of negligence made against the pharmacist.

The Court's Ruling

The trial court held that the Board did not have the authority to discipline a pharmacy license holder for the negligence of one of its pharmacists who was also licensed by the Board. The Court of Appeals disagreed and reversed the trial court's ruling.

The Court's Reasoning

North Carolina statutes allow the Board of Pharmacy to discipline a licensee if, among other reasons, it failed to comply with the laws governing the practice of pharmacy and the distribution of drugs. This discipline may include a letter of reprimand, a suspension, restriction, revocation or refusal to renew a license, or a requirement that the licensee successfully complete remedial education.

When the language of a statute is clear and unambiguous, courts must give the statute its plain and definite meaning. If there are ambiguities in the language, courts must examine the "spirit of the law and what the law seeks to accomplish." In this case, the statute did not make it clear whether a pharmacy permit holder could be disciplined for conduct committed by a licensed pharmacist employed by the permit holder.

The court noted that the purpose of the pharmacy statute is to ensure minimum standards of competency and to protect the public from those who might otherwise present a danger. The legislature granted the Board of Pharmacy the responsibility over licensing pharmacists and permitting pharmacies seeking to operate in the state. In light of the purpose of the statute, the appellate court concluded that the legislature intended the Board to have the authority to discipline a pharmacy for the conduct of one of its licensed pharmacists.

If a pharmacy elects to operate its business through employees, it must be responsible to the Board of Pharmacy for their conduct. A pharmacy may be disciplined for the unlawful acts of employees while they are engaged in the operation of the pharmacy even though the pharmacy license holder did not authorize the acts or did not have actual knowledge of the activities.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.

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