Scope of Practice: Pharmacy Intern Versus Pharmacy Technician

May an aspiring pharmacist who was hired as a pharmacy technician be terminated from employment for performing functions that would be permissible for a pharmacy intern, but not for a pharmacy technician?

ISSUE OF THE CASE

May an aspiring pharmacist who was hired as a pharmacy technician be terminated from employment when he undertook to perform functions that would be permissible for a pharmacy intern to discharge, but are not within the authorization of a pharmacy technician?

FACTS OF THE CASE

An individual in a Northwestern state applied for and gained admission to an accredited college of pharmacy in March of the year in question. In June of that year, prior to commencing classwork in the professional degree program, he was hired by a health system under its “standard 90-day introductory period” policy. The personnel policies of the employer state that a person hired in that way is not subject to the firm’s policies governing termination. Under the relevant policies, his employment could be terminated without explanation, without investigation into complaints, or in other ways that might differ from the treatment accorded long-term employees.

Following receipt of notification that he had been admitted to the PharmD degree program, the individual filed an application with the state board of pharmacy to be a pharmacy technician and another to be a pharmacy intern. The employer and employee did not dispute that the individual was hired as a pharmacy technician, not as a pharmacy intern, because he had not yet commenced his professional education program. The employer did hold open the possibility that he could later transition into a position as a pharmacy intern.

The soon-to-be pharmacy student stressed that he was recognized by the board of pharmacy in both roles. Proceeding on his own without an attorney, what is known as “proceeding pro se,” he filed a lawsuit for termination of employment and differentiated those roles for the court this way: an intern is essentially a “pharmacist in training who is permitted by law to perform most of the tasks a pharmacist can while a technician, on the other hand, cannot perform many of those tasks…” such as counseling patients and transferring prescriptions. It was also noted that “Importantly, unlike an intern, technicians do not have assignment mentors who oversee their work directly.” The health system had a policy that “technicians are not permitted to perform intern functions under any circumstances, nor any other function that requires discretion.”

The scope of practice or employment issue came to the surface when a pharmacist with whom the individual had been working sent an e-mail to the pharmacy supervisor complaining that this person was exceeding his scope of authority as a pharmacy technician. The pharmacy technician had told this pharmacist, who was filling in for someone on vacation, that he was permitted to go to the patient care floors and counsel patients about their medications without supervision.

The pharmacist also reported that she spoke with a patient who had questions after speaking with the pharmacy technician involved in this lawsuit and that the patient was confused because she thought she had already spoken with a pharmacist. The pharmacist concluded that the technician was blatantly disregarding the limits of his technician role.

The pharmacy supervisor who received this report from the supervising pharmacist terminated the employment of the technician on the next day he reported to work. This occurred 60 days into the 90-day introductory period.

The technician filed suit under a state statute related to discrimination and also alleged defamation and infliction of emotional distress. The employer moved for summary judgment in its favor.

THE COURT’S RULING

The court ruled in favor of the employer, dismissing the lawsuit without the matter going to trial.

THE COURT’S REASONING

The judge started by reviewing the standard for granting a motion for summary judgment. Such a ruling is appropriate “when, viewing the facts in the light most favorable to the nonmoving party (the pharmacy technician in this case), there is no genuine issue of material fact…” The judge pointed out that once the moving party (the employer) has satisfied its burden, it is entitled to summary judgment if the nonmoving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, specific facts showing that there is a genuine issue for trial. Succinctly stated, summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable fact-finder could return a decision in its favor.

The final wording provided by the judge in the case sums up the entire matter very well: “Plaintiff appears to simply be an over-eager student whose enthusiasm trumped his better judgment. No reasonable fact-finder could conclude that the plaintiff was terminated for discriminatory reasons based on the record before the Court. For that reason, the defendant’s motion for summary judgment is granted.

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