License Revocation Upheld Following Outlandish Conduct

Pharmacy Times, December 2011 Heart Health, Volume 77, Issue 12

A pharmacist who lost his licence after destroying inventory argues that his due process rights were violated.

A pharmacist who lost his license after destroying inventory argues that his due process rights were violated.

Issue of The Case

When a pharmacist engages in outlandish conduct, including the destruction of $150,000 worth of medications owned by the US government, and is subject to revocation of his pharmacy license, may he advance arguments of denial of due process and abuse of discretion to get a court to overturn that administrative action by the board?

Facts of The Case

A pharmacist employed at a federal facility in a mid-Atlantic state was apparently dissatisfied with his supervisor. He acted on that dissatisfaction by flushing down the toilet or otherwise disposing of federal legend medications worth a substantial amount. His motivation was that he anticipated that the inventory shortage would create problems for the supervisor. This activity on his part was performed over a protracted period of time of 18 months.

His actions were uncovered, and he entered a guilty plea in federal court to the felony crime of theft of government property. His penalty for that offense was imprisonment for 12 months and 1 day to be followed by 2 years of probation. He was also ordered to pay $150,000 in restitution.

The board of pharmacy filed an order to show cause why it should not take disciplinary action against him based on the board’s authority in the Pharmacy Practice Act to refuse, revoke, or suspend the license of a pharmacist who “has been found guilty of or pleaded guilty to any offense in connection with the practice of pharmacy or any offense involving moral turpitude before any court of record of any jurisdiction.” A separate state statute authorizes state professional licensing boards to revoke a license “where the applicant has been convicted of a felony.”

An administrative hearing was held, and the pharmacist, representing himself without legal counsel, participated by telephone from federal prison. The hearing officer who conducted the hearing recommended that the license be revoked. Following this recommendation, the pharmacist, this time acting with legal counsel, filed a brief of exceptions with the licensing board with an appendix bearing information about his employment history and performance evaluations. The board declined to consider that because it had not been presented at the earlier hearing. The board’s final action was to revoke his license. The pharmacist appealed to a court seeking to have the action of the administrative agency overturned.

The pharmacist advanced 2 arguments in court to support his assertions that errors had occurred at the board level. First, he argued that his due process rights had been violated during the hearing, at which he participated by telephone. Second, the failure of the board to impose a more lenient penalty represented an abuse of discretion by that agency, this also being advanced as a reason to overturn the revocation.

The Court’s Ruling

The court denied the appeal and upheld the penalty assessed by the licensure board.

The Court’s Reasoning

The court reviewed the record from the hearing and concluded that the pharmacist had failed to advance the first argument during his hearing. Moreover, he had failed to include that argument in the brief prepared with assistance of counsel and filed with the board after the hearing. In accordance with state law, “Issues not raised before the board in the brief on exceptions are waived.”

Turning to the second argument, that the board abused its discretion when it revoked his license, the court first noted that a provision in the Pharmacy Practice Act extends to a pharmacist whose license has been revoked the opportunity to apply for reinstatement after 5 years. Next, the court pointed out that the pharmacist had presented a number of allegedly mitigating factors that should have served to reduce his penalty. Among those were that he was not stealing the medications for sale on the illicit market or for personal use, that he was cooperative during the investigation of his criminal acts, and that he had shown remorse for his actions. He also pointed to a case some 20 years earlier in which a pharmacist convicted of Medicaid fraud had been subjected to only a 2-year suspension of his license to practice. His argument was that his penalty was too harsh when compared with the outcome in that earlier matter.

The court did not agree. The judges concluded that the case from 2 decades earlier involved “vastly different misconduct.” The court found no “manifest and flagrant abuse of discretion” by the board, so the challenge to the licensing agency’s decision was denied. PT

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