Pharmacist Comes Before the Board of Pharmacy Again

SEPTEMBER 01, 2006
Joseph L. Fink III, BSPharm, JD

Issue of the Case

A pharmacist in a western state found himself before the Board of Pharmacy a second time and received sanctions from the agency for professional lapses. He appealed that decision to a local court and then to the state's Court of Appeals, making 3 arguments on appeal: (1) that his actions or shortcomings did not constitute "unprofessional conduct," (2) that his performance met the standard of care for practicing pharmacists, and (3) that the Board erred in considering his earlier interaction with them when deciding this later allegation.

Facts of the Case

A patient, who was a nursing home resident, received a medication punch-out card labeled Lanoxin, the proper medication, but which actually contained levothyroxine. The card containing the medication had been prepared for the patient to take with him on vacation to Florida. The patient consumed 24 doses of the erroneous medication before the error was discovered by a pharmacist in Florida.

The pharmacist in this case had the responsibility for final verification of the medication with the prescription before dispensing, and he did make the erroneous affirmation that they matched. He was charged by the Board of Pharmacy with violating 3 separate provisions in the state's pharmacy practice statute as well as a Board regulation.

The Board issued a statement of charges against the pharmacist, including the fact that the practitioner had been issued a "notice of correction" the year before the error in question here. The earlier error had also involved incorrectly verifying a prescription for Lanoxin. At a conference preceding the Board of Pharmacy hearing on this latest alleged transgression, the pharmacist sought to delete the portion of the charge that referred to the earlier incident. He was successful. During the subsequent hearing on the second dispensing error, the pharmacist admitted that he was responsible for the deviation from the prescriber's request.

The sanctions imposed by the Board included a 24-month period of probation, 20 hours of community service focused on educating patients about prevention of medication errors, 10 hours of continuing education credits focused on professional ethics, and a requirement that the pharmacist submit a plan of correction to prevent future medication errors.

The Court's Ruling

The Court denied the challenge to the decision of the Board and denied the appeal by the pharmacist. The sanctions imposed by the Board were deemed reasonable.

The Court's Reasoning

The Board had found that each pharmacist involved with a misfill has the responsibility of devising a personal plan for corrective action. The pharmacist had failed to provide such a plan for preventing similar errors in the future. Moreover, he did not acknowledge that he had such an obligation, despite having received a written communication from the Board requesting a "full and complete written response" and "a detailed plan of action" to make reoccurrences less likely.

The Board concluded that his responses to the charges against him, or perhaps better characterized as a failure to respond with a formulation of a plan, demonstrated refusal to accept personal responsibility for his errors. In the view of the Board, this is an inherent duty associated with the practice of pharmacy, and the pharmacist's lack of personal accountability constitutes unprofessional conduct.

Next, the issue of whether or not standards of professional conduct had been met was before the Board. The pharmacist presented an expert witness—a professor of pharmacy who testified that there is an average error rate in the practice of the profession that is a "risk that can't be avoided." Concluding that the error rate among pharmacists is about 2%, the expert witness presented the view that the pharmacist's 2 errors in a 15-month time span was below the average. He continued that, because the average error rate is a risk that cannot be avoided, the pharmacist's errors were not unreasonable, and his performance did not fall below the professional standard of care. The Court ruled that because the Board is composed almost exclusively of pharmacists, it can draw its own conclusions about acceptable standards of practice for members of the profession, as well as its own conclusions about the level of risk of harm to the patient due to having received the improper medications.

Third, the Court ruled that, with regard to the Board taking into account the earlier similar incident, it was true that the pharmacist had language about that stricken from the charges at the preliminary proceeding; however, he and his expert witness repeatedly referred to it during the hearing, "opening the door" to its use by the Board.

The local Superior Court had affirmed the decision by the Board of Pharmacy, and now the state-level Court of Appeals also agreed with all the above conclusions by the Board.

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.