Is a Pharmacist-in-Charge Responsible for a Technician's Drug Diversion?

ISSUE OF THE CASE

The diversion of large quantities of schedule III medications from a pharmacy by a pharmacy technician employed there led to a board of pharmacy review of the situation. The pharmacist-in-charge at the location was disciplined by the board for lack of oversight, a decision that led to the pharmacist seeking review of the action by the courts.

FACTS OF THE CASE

For 11 years, the pharmacist involved in this matter was the pharmacist-in-charge at a location of a national pharmacy chain in a western state. During 2 of those years, a pharmacy technician working at the site would order 6 bottles of 500 tablets of a hydrocodone combination product, timing the delivery to when she was working. Upon arrival of the bottles, she would stash them in a storeroom and destroy the packing invoice reflecting their delivery. She would then take 3 bottles at a time to her car while the pharmacist was on break.

Interestingly, this pharmacy did not stock the brand of hydrocodone combination product she was ordering. Her nefarious ways were uncovered when the pharmacist found a bottle of the tablets in the storeroom, after which he alerted chain management, which launched an investigation. The technician was caught with surveillance and arrested with 3000 stolen tablets in her possession. Her total “take” was estimated at over 216,000 tablets, with a legitimate value of $324,945 if dispensed pursuant to prescription and an illicit value of $1,083,150.

The board of pharmacy cited 6 bases for disciplinary action against the pharmacist, who requested a hearing. An administrative law judge concluded that 5 of the 6 charges were appropriate. The hearing officer recommended a reprimand of the pharmacist by the board, which took up the matter, concluded that all 6 violations were in order, and revoked his license. The board also concluded that the scope of the theft was “staggering,” pointing to numerous lapses on the part of the pharmacist-in-charge. As a final measure, however, the board stayed (delayed) the revocation and placed his license on probation for 3 years. Part of the board’s conclusions was based on the view that a pharmacist-in-charge should be held responsible regardless of whether he or she had actual knowledge of the violations, a form of what the law refers to as “strict liability” (or “liability without fault”).

The pharmacist twice requested a rehearing with the board for reconsideration, but his requests to modify the sanctions against him were denied. He then asked a trial court to review the board’s action, arguing that the board incorrectly applied the provisions of the state’s pharmacy practice act to him when he did not know the theft and diversion were occurring. The trial court concluded that the board correctly interpreted and applied the statute and that it had not abused its discretion when deciding the case. Abuse of discretion is one of several arguments that can be used to challenge a decision of an administrative agency. Losing at the trial court level, the pharmacist, acting as his own attorney (as he had through all the proceedings), then took the matter to the court of appeals. His principal argument was that the board interpreted the wording of the pharmacy practice act too broadly. In his view, the provision in the act related to responsibilities of the pharmacist-in-charge did not extend to include circumstances in which that pharmacist was unaware of the improper conduct of an employee.

THE COURT’S RULING

The appellate court agreed with the trial court, dismissing the pharmacist’s challenge to the board’s decision and the sanctions levied against him.

THE REASONING

The court began by looking at the statutory standards for review of an allegation that an administrative agency had abused its discretion in reaching a decision. It quoted the relevant statute this way: “Abuse of discretion is established if the respondent (the board in this matter) has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” The court then proceeded to review each of those elements in turn, concluding that the board had adequate basis for its decision.

The court emphasized that the board’s interpretation serves to “protect the public by encouraging pharmacists-in-charge to take necessary precautions to adequately supervise and maintain the inventory of dangerous drugs.” It also pointed to a state statutory provision that says that the pharmacist-in-charge is responsible for the pharmacy’s compliance with all state and federal laws and regulations pertaining to the practice of pharmacy.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at theUniversity of Kentucky College of Pharmacy, Lexington.