Pharmacy Law: Diverting a Pharmacist's Access to a Pretrial Intervention Program

Pharmacy Times, November 2014 Cough & Cold, Volume 80, Issue 11

ISSUE OF THE CASE

When a pharmacist’s unusual dispensing behaviors attract the attention of fellow staff members in the pharmacy and an investigation leads to charges of theft and drug distribution, is that pharmacist eligible for pretrial intervention, an alternative to a public trial?

FACTS OF THE CASE

A pharmacist in a mid-Atlantic state was very accommodating to a patient. On 5 occasions, he dispensed OxyContin in an amount exceeding that requested by the prescriber. The pharmacist’s explanation was that the patient had misplaced her supply, and he was making up for the shortfall. He indicated that he would subtract the extra quantity the next time the patient presented a prescription for the medication.

The pharmacist’s handling of these transactions attracted the attention of other staff members for several reasons. First, the pharmacist personally completed all steps in preparing and dispensing the prescriptions, involving no other staff members. He rarely did that when other patients presented prescriptions. He also personally counted the quantity to be dispensed and, following the dispensing, he left the pharmacy with the patient.

There was also a suspicion that the pharmacist had forged relevant records and fabricated 1 prescription.

Charges were filed against the pharmacist alleging theft of the medication in question and illicit drug distribution. In response, the pharmacist’s attorney filed a request that the pharmacist be put into a pretrial intervention (PTI) program. It was hoped that his participation in this alternative to a full criminal trial would lead to a reduced sentence.

A PTI program is directed principally at first-time offenders and is designed to provide opportunities for alternatives to the traditional criminal justice processes. The goal of the program is to provide early rehabilitative services in order to to deter future criminal behavior. This approach emphasizes the fact that cultural, economic, and social conditions often result in a defendant’s criminal behavior.

The decision whether to use this route to address a criminal wrongdoing is made by the prosecutor. In this case, the prosecutor denied the request for referral to a PTI program, stating that the matter involved “profound deviation from ethical standards.” So the case proceeded to trial. The pharmacist was convicted on the charge related to illegal drug distribution but was found not guilty on the theft allegation.

After conclusion of the trial and prior to sentencing, the pharmacist’s attorney moved for reconsideration of his client being denied entry into a PTI program. The argument was that the prosecutor did not evaluate each case individually, but rather had a policy of summarily refusing to support a motion for PTI if the charges included illicit distribution of a CI or CII substance. The trial court judge denied that motion, concluding that the prosecutor had gone through the required analysis and reviewed the relevant factors. The judge ruled that the defendant pharmacist had failed to present clear and convincing evidence that the prosecutor’s decision was arbitrary or capricious. The pharmacist appealed that decision to a state appellate court.

THE COURT’S RULING

The appellate court affirmed the decision of the trial court judge. The prosecutor’s denial of the pharmacist’s access to PTI was deemed appropriate, so the appeal was denied.

THE COURT’S REASONING

To convince the court that reconsideration of the decision to refuse referral to the PTI program was appropriate, the defendant pharmacist had to show that the prosecutor had abused his prosecutorial discretion. The appellate court emphasized that it is a “well-settled principle” that prosecutors are permitted “wide discretion when deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.” The court stated the matter this way: “The question is not whether we agree or disagree with the prosecutor’s discretion, but whether the prosecutor’s decision could not have been reasonably made upon weighing the relevant factors.”

For the defendant to overturn the prosecutor’s decision, he would have had to clearly and convincingly establish that the prosecutor’s refusal was based on a patent and gross abuse of discretion. To meet that standard, the defendant had to show that the denial “(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.”

The prosecutor had emphasized that his denial of the request for PTI was based on evidence that the pharmacist’s actions did not “implicate a single transaction in which a heartfelt pharmacist wanted to help a suffering” patient. The repeating of these transactions over a 3-month period indicated to the prosecutor the “profound deviation from ethical standards” alluded to above. As a result, the appellate court found “no basis to conclude that the defendant pharmacist has clearly and convincingly established that the prosecutor’s decision constituted a patent and gross abuse of discretion.”

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington