What Constitutes the Practice of Pharmacy?

Despite counseling patients and procuring medications, a defendant facing multiple injunctions claimed not to be a pharmacist.

Issue of The Case

When a nonpharmacist operated a service to procure medications from abroad for patients and in the course of doing so interpreted and implemented prescribers’ orders and provided information about medications to patients, did such activities make him subject to the Board of Pharmacy because of being engaged in the “practice of pharmacy”?

Facts of The Case

Operating out of a locale in a western state, a firm advertised that it could assist U.S. citizens with procuring prescription medications from pharmacies in another country. The firm was legally formed and ostensibly run by the wife of the individual involved in the litigation under consideration here. The Supreme Court of the state, in the course of deciding the case, pointed out that the issue under consideration in this litigation arose “out of a nearly decade-long battle between the Board of Pharmacy and this individual, which has played out in several lawsuits involving multiple business entities.”

A number of injunctions, (ie, court orders that someone cease doing something), had been issued by courts directed at the activities of the individual involved in this case, but he had ignored them. In fact, the Supreme Court pointed out that he had brazenly written to the governor of the state “openly proclaiming that he was violating the injunction.”

Representatives of the Board of Pharmacy had attempted to meet with this individual to seek a resolution to the long-running dispute, but he refused to participate in such discussions based on his “continued position that the Board had no authority over him” because he was not “in the commonly used sense of the word, a pharmacist.” In 2009, a court had issued a finding that he was in contempt of court for ignoring the injunction, imposing a fine of $4000.

The Board of Pharmacy then sought a summary judgment and permanent injunction barring him from “engaging in the practice of pharmacy or assisting in the unlicensed practice of pharmacy.” The trial court ruled in favor of the Board, entering the permanent injunction.

The owner of the firm filed an appeal with the state Supreme Court, proceeding on a pro se basis, meaning that he was representing himself, and addressing a number of issues. The Supreme Court noted that “as with many pro se litigants, it is difficult to tell precisely what he seeks to appeal.”

During a prior hearing, the appellant who was bringing the case to the Supreme Court disputed that his activities fell under the jurisdiction of the Board, arguing that his actions did not “fit within the statutory description of the practice of pharmacy.” This position was maintained despite his testimony that “he routinely consults with patients about prescription medications; has patients fill out detailed questionnaires inquiring into the patient’s medical history, allergy information, other prescriptions currently being taken, and the like; recommends generic prescription drugs; arranges for patient counseling by entities unlicensed in the state; and promotes his business as a source of prescription medication through promotional literature and advertising.” His engaging in such activities was corroborated by the former executive director of the Board, who had visited the pharmacy posing as a prospective patient.

The appellant took his argument that he was not engaged in the practice of pharmacy to the highest court of the state.

The Court’s Ruling

The state Supreme Court denied the appellant’s request to overturn the decision of the lower court and upheld the permanent injunction.

The Court’s Reasoning

The court addressed the claim that the Board and the lower court had deficiencies in the factual record by noting that the reason the record of proceedings to date might be lacking was that the appellant refused to provide meaningful responses to factual inquiries. He invoked his Fifth Amendment privilege against self-incrimination when responding to Board questions. Quoting the US Supreme Court, the state Supreme Court noted the “general and long-standing principle” that “silence is often evidence of the most persuasive character.”

The appellant also argued that the lower court had placed too much reliance on the testimony of the former executive director of the Board. The Court noted that had he simply complied with the Board’s requests for information, the “alleged overreliance” on her testimony would have been avoided.

The Court examined the state’s pharmacy practice act, comparing the coverage of that statute with the activities engaged in by the appellant, activities he had himself described. The court concluded that he had clearly been engaged in the practice of pharmacy as defined by the legislature through statute. PT

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