STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF, PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-520

)

ROBERT SCHENK, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 15, 1983, in West Palm Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a five-count Administrative Complaint filed by the Department of Professional Regulation against Robert Schenk. The Respondent requested an administrative hearing in a timely manner, and the matter was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to the provisions of Chapter 120, Florida Statutes.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Donald P. Kohl, Esquire

3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461

ISSUES

The following issues are raised by the specific count indicated in the Administrative Complaint:

Count I: Did the Respondent fail to properly determine the validity of prescriptions presented to him?

Count II: Did the Respondent dispense drugs without a proper prescription?

Count III: Did the Respondent refill prescriptions which legally could not be refilled?

Count IV: Does the Respondent's conduct as alleged in Counts I, II and III constitute misbranding of drugs by the Respondent?

Count V: Did the Respondent make a false sworn statement?

Both parties 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 included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.

FINDINGS OF FACT

1. At all times pertinent to this case, the Respondent, Robert Schenk, was licensed to practice pharmacy under the laws of the State of Florida and held license number 0011776.

   
   

2. At all times material hereto, the Respondent was managing pharmacist at Greentree Pharmacy, 4944 Tenth Avenue North, Green Acres, Florida 33460.

   
   

3. All of the misconduct with which the Respondent is charged pertains to prescriptions written for one customer, Samuel Sanders, age approximately 57, a regular customer of Greentree Pharmacy and the Respondent since 1978. Sanders was a cardiac patient who had had open heart surgery. Sanders had also suffered a gunshot wound to the shoulder, which resulted in the partial paralysis of his arm. Sanders had been admitted to the Miami Veterans Administration Hospital on many occasions.

   
   

4. On the dates indicated below, Sanders brought to the Respondent to be filled prescriptions allegedly written by a Dr. Axher of the Veterans Administration Hospital in Miami:

   
   

   DATE	PHARMACY RX NUMBER	SUBSTANCE
   07/24/80	18451	Dilaudid
   09/04/80	19297	Dilaudid
   11/26/80	21100	Dilaudid
   12/30/80	21695	Percodan

   
   

5. The Respondent filled the prescriptions set forth supra for Sanders after the Respondent had called the Veterans Administration Hospital and confirmed the DEA number on the prescription. The Respondent was unable to confirm the physician's identification with the Veterans Administration personnel with whom he spoke.

   
   

6. In the past, a DEA number was assigned to Veterans Administration hospitals and covered all physicians. Subsequently, an additional identifier was added to the DEA numbers for facilities such as Veterans Administration hospitals to identify a specific physician. This regulation became effective in 1972; however, although no one could state when it was implemented, it was the general consensus of the witnesses that it was well after that date. The Respondent determined that the DEA number on the subject prescriptions was that of the Miami Veterans Administration Hospital; however, he could not determine whether the physician who signed the prescriptions was employed at that hospital.

   
   

7. It was subsequently determined that the prescriptions presented to the Respondent by Sanders were forgeries.

   
   

8. Although the Respondent could not identify the physician treating Sanders, Sanders was in fact treated at the Miami Veterans Administration Hospital by Dr. Atler. It was uncontroverted that pharmacists generally had a

   difficult time contacting Veterans Administration physicians to validate prescriptions.

   
   

9. A search of Sanders' residence, conducted pursuant to search warrant, revealed many pill bottles, some of which came from Greentree Pharmacy and the Respondent. Pill bottles with the following prescription numbers were seized by the authorities at the time of this search: 5683, 10813, 16230, 19803, 21509, 20358, and 20357 or 8 (strikeover). A search of the records of Greentree Pharmacy and the Respondent revealed that prescription numbers 5683, 10813, 16230 and 19803 were not written for Sanders but were written for other customers of the pharmacy. The prescription number 20357 was not for the drug listed on the bottle bearing the number 20357 or 8 (strikeover). The prescription for 20358 was for the drug listed on said bottle.

   
   

10. The Respondent's pharmacy, Greentree Pharmacy, was robbed sometime between mid-1980 and mid-1981. At that time, portions of the prescription records of the pharmacy were taken by the thief incidental to the robbery.

    
    

11. The Respondent admitted that Sanders would come into the pharmacy and request a new pill bottle for an old prescription which had had the label obliterated. When the Respondent could not substantiate the original prescription because it was missing, the Respondent would assign it a prescription number generally in the range of the purported original and prepare a new label for Sanders. The Respondent denied refilling these prescriptions for Sanders.

    
    

12. During the search referenced above, the authorities seized approximately six sets of bottles, each set bearing the same prescription number for controlled substances. Prescriptions for the controlled substances concerned cannot legally be refilled. Because in all but one instance these sets of pill bottles bore identical labels, this is prima facie evidence that the prescription had been refilled. However, only two of the bottles found contained any pills, and in both instances the number of pills in those bottles was less than the number of pills originally prescribed. The Respondent denied that he refilled these prescriptions. There is no allegation and no proof that the prescriptions for these medications were forged.

    
    

13. The Respondent prepared a written sworn statement for an investigator of the Department of Professional Regulation. In this statement, the Respondent referred to the physician treating Sanders, "Dr. Axher," as "Dr. Astler." Evidence was introduced that a Dr. Atler did treat Sanders. The Respondent had been advised of this physician's name on the telephone but had not seen the name in writing.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Board of Pharmacy has authority pursuant to Chapter 465, Florida Statutes, to discipline licensed pharmacists. This Recommended Order is entered pursuant to the provisions of Section 120.57(1) and Chapter 465, Florida Statutes.

    
    

15. Count I of the Administrative Complaint filed by the Petitioner against the Respondent alleges that he violated Section 893.04(1) and Sections 465.015(2)(c) and 465.016(1)(e) and (i), Florida Statutes. This count charges that the Respondent failed to properly validate a prescription prior to dispensing medications. The statutes cited in the Administrative Complaint do not state that failure to validate a prescription is an offense. Neither do

    these statutes set forth the measures a pharmacist must take to validate a prescription, nor do they set forth some specific standard of care a pharmacist must exercise. The standard is assumed, therefore, to be a reasonable standard under the circumstances. Applying this standard to the facts in this case, the Respondent filled a prescription purportedly signed by a Veterans Administration physician for a longtime customer of his pharmacy. This customer is older than persons commonly associated with drug abuse. The Respondent called the Miami Veterans Administration Hospital, which confirmed the DEA number on the prescription but could not confirm the physician's name. The Respondent filled the prescription for the customer, and it was thereafter determined that this prescription presented by the customer was a forgery.

    
    

16. Although the Respondent failed to confirm the name and number of the physician with the Miami Veterans Administration Hospital as a minimum precautionary measure, it is noted that it took an investigation by Respondent's attorney to establish that Dr. Atler did in fact work for the Miami Veterans Administration Hospital and did in fact treat Sanders. Obviously, a pharmacist cannot be expected to track down a Veterans Administration physician under these circumstances to confirm prescriptions. The person who stands to be hurt is the customer/patient, who goes untreated if his prescription is not filled.

    
    

17. The statutes do not say that failure to check a DEA number is a violation. Therefore, it becomes a matter professional judgment on the part of the pharmacist when to be satisfied a prescription is legitimate. As stated above, the standard is that of a reasonable pharmacist under the circumstances presented. Based upon the facts above, it is concluded that the Respondent is not in violation of Section 465.016(1)(i), Florida Statutes.

    
    

18. Count II of the Administrative Complaint alleges that Respondent dispensed drugs without proper prescriptions. A search of the prescription records at Greentree Pharmacy revealed that prescriptions 5683, 10813, 16230 and 19803 were not written for the customer Sanders. However, pill bottles were found bearing Greentree Pharmacy labels with those prescription numbers made out for Sanders. The prescription number 20357 was not for the drug listed on the bottle labeled number 20357 or 8 (strikeover). The prescription number 20358 was for the drug listed on the bottle that was found. The Respondent testified that he gave Sanders additional labeled bottles at Sanders' request. Evidence was presented that a robbery had occurred at Greentree Pharmacy in which certain prescription records were stolen incidental to the robbery. However, the Respondent's practice of assigning false prescription numbers to medicine bottle labels in the absence of the original prescription is unprofessional conduct, because the pharmacist cannot relabel the pills he has received from a customer. At most, there is evidence that the Respondent dispensed medications to Sanders without a valid prescription. The Respondent denies this, and his testimony to various investigators was consistent that he only relabeled items to "accommodate the customer." This constitutes a technical violation of Section 465.016(1)(i), Florida Statutes.

    
    

19. Count III of the Administrative Complaints alleges that the Respondent improperly refilled prescriptions for Sanders. Again, the search of Sanders' residence revealed more than one pill bottle with the same prescription number and for substances which were of a nature that prescriptions for them may not be legally refilled. Again, the Respondent stated that he did not refill the prescriptions but only provided Sanders with additional pill bottles. The only pills actually found were morphine and Percodan. Although there were more than one pill bottle for each of these prescriptions, all of the morphine was found in a bottle labeled "morphine," and all of the Percodan was found in a bottle

    labeled "Percodan." The total number of each type of pill was less than the number originally prescribed. Therefore, at most, the Respondent is guilty of improperly refilling prescriptions and, at least, of unprofessional conduct by improperly relabeling pill bottles. It is concluded that the Respondent is guilty of the technical violation of Section 465.016(1)(i), Florida Statutes, by relabeling bottles improperly.

    
    

20. Count IV of the Administrative Complaint alleges that the conduct alleged in Counts I, II and III constitutes misbranding of Drugs contrary to Chapter 500, Florida Statutes. This allegation is one and the same with the allegations of Counts I, II and III and may only be punished once. It appears more appropriate to the facts presented to proceed under the provisions of Chapter 465, Florida Statutes.

    
    

21. Count V of the Administrative Complaint alleges that the Respondent made a false sworn statement based upon the fact that he improperly spelled a treating physician's name. The nature of proper names is such that no standard spelling of them exists. The failure to properly spell a proper name is not a false statement. There was no violation of Sections 465.015(2)(a) and 465.016(1)(e) , Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that no action be taken against the Respondent's license to practice pharmacy; however, that the Respondent, Robert Schenk, be assessed a civil fine of $1,000 for the violations alleged in Count II and $1,000 for the violations alleged in Count III of the Administrative Complaint, for a total of $2,000.

DONE and RECOMMENDED this 26th day of September, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 26th day of September, 1983.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A

Palm Springs, Florida 33461

Wanda Willis, Executive Director Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000520

Orders for Case No: 83-000520