Board of Pharmacy Revokes Expired License of a Former Pharmacist

Joseph L. Fink III, JD, BSPharm, DSc (Hon), FAPhA;

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February 23, 2024

Pharmacy Times

February 2024

Volume90

Issue 2

Board of Pharmacy Revokes Expired License of a Former Pharmacist

Author(s):

Joseph L. Fink III, JD, BSPharm, DSc (Hon), FAPhA

The question arose whether the court would allow the pharmacist to recover his attorney fees

FACTS OF THE CASE

The pharmacist was convicted in a federal proceeding of violating federal law by distributing adulterated compounded medications and then attempting to conceal various aspects of the matter during the investigation. Those activities led to his incarceration for 33 months. The board of pharmacy in his state summarily suspended his license based on his federal conviction. Following that board action, the individual failed to renew his expired license. Two years later, the board initiated proceedings that led to the revocation of his expired license to practice pharmacy.

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The former pharmacist filed a lawsuit in state court challenging the board’s revocation of his inactive license, arguing that the board had no legal authority or authorization to revoke an expired license. He prevailed at the trial court level, and the court ordered the board to revoke its order canceling his inactive license. Based on a subsequent motion made by the individual’s attorney, the state trial court also ordered that the board should cover the amount of the individual’s attorney fees paid to pursue the matter.

The board of pharmacy disagreed with the trial court’s order that it cover the expense of the attorney fees and appealed that matter to the relevant state court of appeals. The board’s view was that it had immunity from such payment orders.

THE COURT’S RULING

The court of appeals ruled that the board’s interpretation was correct. The court based its decision in favor of the administrative licensure agency because of its absolute quasi-judicial status.

The point of departure for the appellate court, addressing the possible personal liability exposure of board members, was that “judicial immunity shields judicial officers from suit.” The reasoning undergirding this rule is that judicial officers should not be motivated “to act with excess caution or otherwise…skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct out of fear of litigation or personal monetary liability.” And that same interest is applicable “to confer immunity on nonjudicial officers who perform quasi-judicial functions.…” Quasi-judicial immunity is absolute.

The judges on the court of appeals pointed out that although the state legislature may not have conferred on the board-specific statutory authority to revoke an expired license, this agency, like other professional licensure entities, had “broad authority to adjudicate matters relating to the pharmacists’ licenses.”

In addition, when the FDA launched an investigation of the matter along with the operation of the individual’s pharmacy, he had a very active role in misleading investigators, telling one of the pharmacists “to lie to the inspectors and to pretend that she was the pharmacist at the facility under inspection.” He also convinced his pharmacy’s director of compliance “to try to prevent the actual pharmacist for that facility…from speaking with the inspectors.”

The attorneys for the board argued that the members of the licensure agency “at most, made a mistake about the extent of that grant of licensing and regulatory authority.” They had “merely acted in excess of their authority, which…is not the same thing as acting in complete absence of all jurisdiction over (the individual) and the subject of pharmacists’ licenses.”

The court of appeals issued an order based on its conclusion that the trial court judge had made an error in awarding attorney fees to the individual, reversing that order of reimbursement. The court summed up its stance by stating that, “It is clear that the board had a very compelling interest in pursuing whatever potential avenues it had available to it to ensure that [the individual] would never again hold a pharmacist license [in the state].”

About the Author

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

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