STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2100

)

HERMAN GINSBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 20, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Vincent J. Flynn, Esquire 1414 Coral Way

Miami, Florida 33145

Petitioner filed an Administrative Complaint against the Respondent, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Dr. Leo A. Asher, Jr., Dr. Jack Robert Cohen, Dr. Arthur J. Schatz, Robert Harold Strauss, Geraldine Susan Armstrong and Brooks C. Harle. Additionally, Petitioner's Exhibits numbered 1 through 4 and 6 through 15 were admitted in evidence.

The Respondent, Herman Ginsberg, testified on his own behalf.

Both parties have submitted post-hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent Herman Ginsberg is a registered pharmacist having been issued license number 0008019.

   
   

2. At all times material hereto, Respondent was the managing pharmacist or the pharmacist on duty at Parkway Drugs (formerly Jaffe Drugs), located at 737 Northeast 167th Street, North Miami Beach, Florida. The pharmacy changed ownership on March 23, 1981, and Robert Strauss thereafter became managing pharmacist.

   
   

3. On December 12, 1979, Dr. Arthur J. Schatz treated Geraldine Hauser Armstrong. In conjunction therewith, Dr. Schatz gave her a prescription for 30 Valium, 5 mg. tablets.

   
   

4. Dr. Schatz authorized no refills on the prescription, and no refills were subsequently authorized by him. Further, no individual contacted his office to either verify the prescription or to request refills of that prescription.

   
   

5. When the Valium prescription was located in the files of Parkway Drugs, it exhibited the notation "5X" by the word "REFILL" and further exhibited pricing information for the purchase of 100 Valium tablets. The "5X" indicates that five refills were authorized by the physician. Dr. Schatz did not place the notation indicating five refills on the prescription.

   
   

6. Armstrong presented the Valium prescription to the Respondent on December 12, 1979, for the purpose of having the prescription filled.

   Respondent indicated that he could fill the subject prescription in the amount of 100 Valium tablets instead of the prescribed 30 if Armstrong so desired. She did.

   
   

7. The Valium prescription written by Dr. Schatz was filled by Respondent in the amount of 100 Valium, 5 mg., originally and on five subsequent occasions.

   
   

8. Prescription number 58350, located in the prescription files of Parkway Drugs, purports to be a telephoned prescription called in by Dr. Jack R. Cohen on December 17, 1980, for 150 Soma Compound for Geraldine Hauser Armstrong.

   
   

9. Dr. Cohen did not prescribe, authorize or telephone in a prescription for 150 Soma Compound for Geraldine Hauser Armstrong on December 17, 1980.

   
   

10. This prescription constituted the basis upon which the personnel of Parkway Drugs dispensed Soma Compound to Armstrong not only on December 17, 1980, but also on at least 12 other occasions between March 30, 1981, and September 12, 1981. Respondent personally dispensed Soma Compound to Armstrong as a result of this prescription on at least December 17, 1980, April 14, 1981, and May 11, 1981.

    
    

11. On March 2, 1981, Dr. Leo A. Asher, Jr., pursuant to an office visit, prescribed for Armstrong on prescription forms bearing his name, address and phone number, 24 units of Darvon 65 and 20 units of Quinamm.

    
    

12. After receipt of these prescriptions, Armstrong altered the amounts as indicated on the original prescriptions by changing the number of Darvon from 24 to 400 and by changing the number of Quinamm from 20 to 200. The alteration of the Darvon prescription, in particular, is blatantly obvious even to the

    untrained observer. Armstrong further altered these prescriptions by adding a notation that the same could be refilled as needed even though the physician had specifically stated on the prescriptions that there were to be no refills.

    
    

13. After altering the prescriptions as indicated, Armstrong presented them to the Respondent who, without questioning Armstrong or calling the prescribing physician, honored the prescriptions in the altered amounts in spite of the conflicting instructions concerning the number of refills.

    
    

14. A prescription for 400 Darvon 65 is excessive and inappropriate on its face. Respondent, however, filled this prescription at the same time that he filled the prescription for 200 Quinamm, a muscle relaxer.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties here to and the subject matter hereof. Section 120.57(1), Florida Statutes (1981).

    
    

16. Although the Administrative Complaint filed herein contains four separate counts alleging statutory violations by the Respondent, Petitioner, in its proposed recommended order, admits that no specific proof was presented as to Count IV and, accordingly, Count IV should be dismissed. Petitioner's assertion is correct, and, accordingly, Count IV of the Administrative Complaint be and the same is hereby dismissed with prejudice.

    
    

17. Count I of the Administrative Complaint charges Respondent with violating Sections 465.016(1)(e), 465.015(2)(c) 893.04(1) and 893.13(2)(a)1., Florida Statutes, by dispensing a controlled substance without first being furnished with an authorized prescription or refill therefor, as a result of Respondent's dispensing Valium pursuant to Dr. Schatz's prescription. Petitioner has met its burden of proving Respondent guilty of the allegations contained in Count I of the Administrative Complaint by knowingly filling the Valium prescription in an amount in excess of that authorized by the prescriber by dispensing to Armstrong 100 Valium as opposed to the prescribed 30 when the prescription was originally filled by the Respondent and on each of the five refills thereafter.

    
    

18. Count II charges Respondent with violating Section 465.016(1)(e) and 465.015(2)(c), Florida Statutes, by dispensing the medication Soma Compound without first being furnished a prescription. Again, Petitioner has met its burden of proving the Respondent guilty of the allegations in Count II of the complaint in that Respondent initially filled an "oral" prescription without verifying that prescription with the purported prescriber. Even if Respondent had believed the "telephoned" prescription of December 17, 1980, to be a valid prescription, even Respondent fails to justify the refilling of that prescription on any subsequent occasion.

    
    

19. Count III charges Respondent with violating Sections 465.016(1)(e), 465.016(1)(i) , 465.015(2)(c) , 893.04(1) 893.13(2)(a)1, 893.07(1) and 893.07(3), Florida Statutes, as a result of filling the March 2, 1981, prescriptions for Darvon and Quinamm. It is obvious to anyone that the prescription for Darvon, a controlled substance, was altered by changing the prescribed 24 tablets to 400 tablets. The conflicting information on the prescription that no refills were permitted and that refills were permitted whenever the patient desired would put anyone on notice that the prescription was not an appropriate prescription, for that reason alone. A close look at the

    Quinamm prescription also makes it obvious that the number 20 was increased to 200, and, once again, the prescription bears the conflicting instructions that no refills are authorized and that refills may be obtained by the patient whenever she desires. Respondent's failure to verify with the prescribing physician the validity of those altered prescriptions before filling them and giving Armstrong 600 tablets of Darvon and Quinamm combined in one purchase constitutes gross incompetence and negligence. Respondent's dispensing pursuant to these prescriptions was excessive, inappropriate, not in the best interest of the patient, and not in the course of the professional practice of pharmacy.

    
    

20. Petitioner, in its proposed recommended order, recommends that Respondent's license be revoked. No evidence in mitigation of the recommended penalty has been offered. Rather, in view of Respondent's refusal to dispense medication in accordance with the amount prescribed by a physician (as in the case of the Valium), Respondent's failure to require a prescription prior to the dispensing of medication (as in the case of the Soma Compound), and Respondent's willingness to fill blatantly altered prescriptions for excessive quantities of controlled substances (as in the case of the Darvon 65 and Quinamm), Petitioner's recommendation is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations in Counts I, II and III of the Administrative Complaint and revoking his license as a registered pharmacist.

DONE and RECOMMENDED this 11th day of March, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Vincent J. Flynn, Esquire 1414 Coral Way

Miami, Florida 33145

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Hinton F. Bevis, Executive Director

Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002100

Orders for Case No: 82-002100