Board May Discipline Pharmacy for Negligence of Pharmacist

Issue of the Case

In this month's case, the North CarolinaCourt of Appeals was askedwhether the Board of Pharmacy hadthe authority to discipline a pharmacylicense holder for the negligence ofone of its pharmacists.

Facts of the Case

The defendant pharmacy received aphysician's prescription from a long-termcare facility which called for"Dilantin (phenytoin) 100 mg capsulesBID and Dilantin 50 mg BID."The dispensing pharmacist did nothave Dilantin 50 mg in stock, so hedispensed liquid Dilantin with directionsthat read "10 cc = 50 mg." Forthe patient to receive the correct dose,however, the directions should haveread "2 cc = 50 mg."

The patient took the dosage for 4days and died 10 days later. It couldnot be determined whether the incorrectdosage of Dilantin caused or contributedto the death. When the Boardof Pharmacy received informationregarding the error, it conducted aninvestigation that revealed 4 other dispensingerrors by the same pharmacistwithin that time frame.

The Board issued a notice to thepharmacy and the pharmacist that itintended to conduct a hearing regardingthe 5 dispensing errors uncoveredduring their investigation. The purposeof the hearing was to determinewhether the errors violated the lawsgoverning the practice of pharmacy,thereby subjecting the pharmacy andpharmacist to the Board's disciplinaryauthority.

At the hearing, the pharmacy admittedto the allegations concerning thedispensing errors. The evidence presentedshowed that all of the errors hadbeen committed by pharmacy technicianswho worked under the supervisionof the defendant pharmacist. Thepharmacy also presented evidence thatit terminated the pharmacist shortlyafter the errors were uncovered.

The Board of Pharmacy suspendedboth the pharmacist's license and thepharmacy's license for 7 days. The suspensionof the pharmacy's license wasstayed for 2 years as long as it compliedwith stated restrictions, includinglimitations on the number of prescriptionsit could fill.

The pharmacy sought judicial reviewof the board's decision. It argued theBoard had exceeded its statutoryauthority and improperly imputed tothe pharmacy the findings of negligencemade against the pharmacist.

The Court's Ruling

The trial court held that the Boarddid not have the authority to disciplinea pharmacy license holder forthe negligence of one of its pharmacistswho was also licensed by theBoard. The Court of Appeals disagreedand reversed the trial court's ruling.

The Court's Reasoning

North Carolina statutes allow theBoard of Pharmacy to discipline alicensee if, among other reasons, itfailed to comply with the laws governingthe practice of pharmacy and thedistribution of drugs. This disciplinemay include a letter of reprimand, asuspension, restriction, revocation orrefusal to renew a license, or a requirementthat the licensee successfullycomplete remedial education.

When the language of a statute isclear and unambiguous, courts mustgive the statute its plain and definitemeaning. If there are ambiguities inthe language, courts must examine the"spirit of the law and what the lawseeks to accomplish." In this case, thestatute did not make it clear whether apharmacy permit holder could be disciplinedfor conduct committed by alicensed pharmacist employed by thepermit holder.

The court noted that the purpose ofthe pharmacy statute is to ensure minimumstandards of competency and toprotect the public from those whomight otherwise present a danger. Thelegislature granted the Board of Pharmacythe responsibility over licensingpharmacists and permitting pharmaciesseeking to operate in the state. Inlight of the purpose of the statute, theappellate court concluded that the legislatureintended the Board to havethe authority to discipline a pharmacyfor the conduct of one of its licensedpharmacists.

If a pharmacy elects to operate itsbusiness through employees, it must beresponsible to the Board of Pharmacyfor their conduct. A pharmacy may bedisciplined for the unlawful acts ofemployees while they are engaged inthe operation of the pharmacy eventhough the pharmacy license holder didnot authorize the acts or did not haveactual knowledge of the activities.

Larry M. Simonsmeier isEmeritus Professor ofPharmacy Law atWashington State UniversityCollege of Pharmacy.