Comprehensive Physical and Mental Exam Ordered for Pharmacist

ISSUE OF THE CASE

The unusual behavior of a pharmacist attracted the attention of the state board of pharmacy, leading it to issue a confidential order that he undergo a comprehensive physical and medical examination. The pharmacist challenged the order with the administrative agency and through 2 levels of the state court system. Did the pharmacist prevail?

FACTS OF THE CASE

A pharmacist in a Midwestern state entered a plea of guilty to a state charge of operating a vehicle while intoxicated, a first offense for him. The penalty assessed was that he was to either serve a 48-hour term in jail or complete a treatment program. Three weeks after the conviction, the pharmacist’s supervisor contacted the board to inquire whether the pharmacist had self reported the conviction as required by state law. He had not done so, and when a representative of the board asked why he had failed to do so, the pharmacist responded that he thought such reports were submitted only for the license renewal process.

Two weeks later, a board compliance officer launched an investigation regarding the pharmacist. As part of this process, the supervisor was interviewed. He reported that the licensee had exhibited problems with short-term memory and personal hygiene, and had arrived at work wearing unclean clothing. Further, the supervisor reported he had noticed a ketone-like smell on the pharmacist’s breath, indicative of heavy drinking the night before, on many occasions and that he had received 2 secondhand reports of public intoxication by the pharmacist.

The board issued a confidential order for a comprehensive physical and mental evaluation to be scheduled within 10 days. A component of that assessment was to include an evaluation of the pharmacist’s ability to safely practice pharmacy. The relevant state statute that authorized such an order read:

“Each licensee of a licensing board, as a condition of licensure, is under a duty to submit to a physical, mental, or clinical competency examination when directed in writing by the board for cause...The licensing board, upon probable cause, shall have the authority to order a physical, mental, or clinical competency examination.”

The pharmacist challenged the board’s order, claiming there was no probable cause supporting the mandate. The board held a hearing on the matter, at which the pharmacist presented a substance abuse evaluation prepared by an assessment counselor. The conclusion in that document, which had been based on an interview of the pharmacist, was that there was a low probability that the pharmacist had a substance abuse disorder.

The board denied the pharmacist’s objection to its order, identifying 3 short comings: the board had no prior notice of the evaluation, the evaluator was not preapproved by the board, and the report did not address the pharmacist’s physical or mental health, nor his ability to safely practice pharmacy.

The pharmacist did not agree, filing a petition with the court to review the decision of the administrative agency. His argument was that there was no substantial evidence to support the board’s initial finding that there was probable cause to issue the directive for a physical and mental evaluation. The trial court where he sought review disagreed with his assertion and affirmed the board’s order. The pharmacist then filed an appeal with the state court of appeals.

THE COURT’S RULING

The appellate court concluded there was substantial evidence in the record of the case to support the board’s order. It also affirmed the board’s order.

THE COURT’S REASONING

The court focused its review on the record of the proceedings to date, viewing the record as a whole. The question before it, framed by the appellant-pharmacist, was whether substantial evidence existed for the board to support its decision to issue the mandate. The court looked to state statutes for a definition of “substantial evidence”:

“The quantity and quality of evidence that would be deemed sufficient by a normal, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.”

The court identified its role as judging the conclusion that substantial evidence existed for the board’s decision “in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it.” It then turned to the provision in the Pharmacy Practice Act that defines impairment:

“the inability of a pharmacy professional to practice pharmacy ... with reasonable safety and skill as a result of alcohol or drug abuse, dependency, or addiction, or any neuropsychological or physical disorder or disability.”

The board concluded that the reports of problems from the pharmacist’s supervisor were more credible than the report from the assessment counselor. Pointing out that it is not the role of the court to reassess the evidence or make its own determination of the weight to be given to the various pieces of evidence, the appellate court affirmed the decision of the board and the lower court.

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