vs. ) CASE NO. 88-6270
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in the above styled case on May 18, 1989, in Tampa, Florida.
For Petitioner: Bruce D. Lamb, Esquire
The issue for consideration herein was whether Respondent's license as a registered pharmacist in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
On November 21, 1988, Charles F. Tunnicliff, Chief Attorney, for Larry Gonzalez, Secretary of the Department of Professional Regulation, (Department), filed an Administrative Complaint in this case alleging in two Counts that Respondent had unlawfully honored prescriptions for controlled substances knowing that they were not written in good faith and in the course of the author's professional practice, thereby dispensing a medicinal drug outside the course of the professional practice of the pharmacy, in violation of Chapter 465.016(1)(i), Florida Statutes.
On December 5, 1988, the Respondent submitted an Election of Rights form denying the allegations contained in the Complaint and requesting a formal hearing. On December 14, 1988, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and on February 2, 1989, Don W. Davis, Hearing Officer, entered a Notice of Hearing setting the case for hearing on March 29, 1989. On March 15, 1989, Hearing Officer Davis granted Petitioner's Motion to Continue the final hearing, cancelling the March
29th hearing and setting May 18, 1989 as the new hearing date, at which time the case was heard by the undersigned as scheduled. However, prior to the actual hearing, Petitioner moved to amend the Complaint to add Counts III and IV, which was granted on May 11, 1989.
At the hearing, but prior to the taking of testimony, Petitioner voluntarily dismissed Count IV and, at the close of the Petitioner's case, subsequent to a Respondent Motion for Dismissal of Count III, voluntarily dismissed Count III as well.
At the hearing, Petitioner presented the testimony of Dr. John T. Flannigan, the dentist who wrote the prescriptions in question; Diane Gossett, a medical quality assurance investigator for the Department; Marsha Lyn Villani, Dr. Flannigan's office manager at the time in issue, and one of the individuals who presented the questioned prescriptions to Respondent; Shawna Renee Norris (Robinson), formerly Dr. Flannigan's dental assistant and another individual who presented prescriptions to the Respondent; Debora S. Wright/Laxen, formerly a dental assistant to Dr. Flannigan and an individual who presented prescriptions; and the Respondent. Petitioner also introduced Petitioner's Exhibits 1 and 2.
Respondent testified in his own behalf and presented the testimony of Dr. Robert Caspar, an osteopathic physician; Daniel N. Quigley, President of First Tampa Bank Corporation; and Barry E. Brynjolffson, an organizing director of the First Tampa Bank Corporation. Respondent also introduced Respondent's Exhibits A and B.
A transcript of the proceedings was furnished and both parties submitted Proposed Findings of Fact which have ruled upon in the Appendix to this Recommended Order.
The Board of Pharmacy is the state agency in Florida charged with the regulation of the practice of pharmacy in this state.
By stipulation, at all times material to the allegations herein, Respondent was a pharmacist in Florida having been issued license Number TS 0017388.
On or about December 13, 1985, Respondent dispensed 20 Empirin #3 tablets with codeine to Sandra Robinson, a dental assistant to Dr. J. T. Flannigan, pursuant to a prescription written by Dr. Flannigan that same day.
On January 8, 1986, Respondent again dispensed 20 Empirin #3 with codeine to Ms. Robinson pursuant to another prescription written by Dr. Flannigan that same day.
Empirin #3 with codeine is a brand name of a medicinal drug defined by Section 465.003(7), Florida Statutes, containing codeine, a controlled substance, in sufficient quantity to be listed in Schedule III, Chapter 893, Florida Statutes.
On January 14, February 3 and 26, March 10, and November 11, 1986, Respondent again honored prescriptions written on those dates for Empirin #3 with codeine, in the amounts of 20, 20, 30, 30, and 20 tablets respectively, to Marsha Villani, Dr. Flannigan's office manager.
At all times relevant to the allegations in the Complaint, Respondent was prescription department manager for Jake's Health Mart, a community pharmacy as described in Section 465.018, Florida Statutes, as well as sole shareholder and owner of the facility.
Ms. Villani, Ms. Norris, and Ms. Laxen, all, at the time in issue, presented the prescriptions to Respondent and received the substance indicated from him under a scheme devised by Dr. Flannigan who suffered from a bad back. The prescriptions were written and given to the women by Flannigan with the understanding that they would have them filled and then deliver the drugs to him.
Ms. Villani worked for Dr. Flannigan from July, 1984 to April, 1988. During that period, Flannigan also treated her as a patient and, at various times, prescribed medicine for her for relief of pain from a broken foot and a dislocated shoulder. Over the period of time she worked for him, he also gave her prescriptions for drugs containing controlled substances issued in her name which were really for him. Many of these prescriptions were taken by Ms. Villani to Respondent's store where some were filled by Respondent, personally. Others were filled by other pharmacists who worked for him. It is her recollection that during the time she was doing this, she discussed what she was doing with Respondent because she was nervous about it since she knew it to be improper. She claims to have told Respondent on many occasions that the prescriptions were not for her use and discussed the possible repercussions of her actions with him several times. When she mentioned her concerns about Dr. Flannigan's continued drug use and his use of her as a courier, Respondent allegedly was very supportive and indicated it was nothing to be concerned about. After a period of time, during which Respondent never failed to honor the invalid prescriptions, on one occasion he did refuse to honor a prescription and told Ms. Villani to tell Flannigan to call him. At the time, she felt this might be Respondent's way of handling the situation, but she found, thereafter, that it was because he had been contacted by a Department investigator who was looking into Flannigan's activities.
On cross examination, Ms. Villani indicated she believed other pharmacists working for the Respondent also knew what was going on because she also told them of the scheme. In this, her testimony is inconsistent with that given on direct wherein she indicated she did not discuss what she was doing regarding Flannigan's prescriptions with any other pharmacist. She also indicates that Respondent's brother, Pete, who worked at the pharmacy, filled some of the prescriptions for her and that she told him what was going on as well.
Ms. Norris worked for Dr. Flannigan from October, 1984 through February, 1986 and, in addition to working with him, was a patient in 1985. At that time, he prescribed Percodan and an antibiotic. During the period of time she worked for him, he gave her several prescriptions for Empirin #3 with codeine which she was to have filled and then transfer the drug to him. Ms. Norris took those prescriptions to the Respondent for filling, but usually did not tell him who the pills were actually for. However, on one instance in December, 1985, she took a prescription for Empirin #3 with codeine in and when the Respondent asked her if the prescription was for her throat, she indicated they were not for her even though her name was indicated as patient on the prescription form. Nonetheless, the Respondent filled the prescription. In January, 1986, when she took another prescription in, Respondent asked her if it was for her throat and she indicated it was.
Ms. Laxen worked for Dr. Flannigan as a dental assistant over two different periods, from March, 1984 through July, 1985, and again from October, 1987 through January, 1988. During those periods, she was not treated by him as a patient, however, he gave her prescriptions for drugs which she was to have filled and return to him during the period before she left in July, 1985. These prescriptions, which were written in her name, were filled by Respondent and on at least one occasion, when Respondent asked her if the prescription was for her, she indicated it was not. He nonetheless filled it. Though she had received other prescriptions of that nature from Flannigan which she had filled by Respondent and his associates previously, she had not discussed any of the details with Respondent. In fact, she is not sure which prescription is the one she discussed with Respondent. The entire situation was not comfortable for her and she preferred not to do it. Under the circumstances shown here, since no substance is indicated and no actual date is shown, Ms. Laxen's testimony is relevant only to corroborate the allegation that Respondent would fill prescriptions knowing that the name appearing thereon was not the actual individual for whom the substance was destined.
Respondent does not deny knowing Ms. Villani or Ms. Norris but does not recall having met Ms. Laxen. He cooperated fully with the Department's investigator, Ms. Gossett, and even suggested ways in which she could get additional information.
Most of the prescriptions in question presented by Ms. Villani, Ms. Norris, and Ms. Laxen are what are known as "third party prescriptions" paid for by an insurance company with the presenter paying only a $2.00 co-payment.
Under the terms of the agreements he has with the various insurance companies, Mr. Beckel receives only the wholesale cost of the drug he provides plus a service fee of $3.00. As a result, there is very little profit in this type of prescription and he claims he would not place his license in jeopardy for the small amount of profit that might be realized from supplying Dr. Flannigan's drug needs.
Consistent with that thesis, Respondent claims not to have known that he was filling false prescriptions when the investigator first came in. In September, 1987, at the time of the investigation, Ms. Gossett told Respondent that the prescriptions given by Flannigan to his employees were bad and that he should fill no more of them. He agreed. About an hour later, Ms. Villani came in with one of them and he asked her about it. At that time she admitted that the prescription, though written to her, was not for her, and at that point, he refused to honor it and requested that she have Dr. Flannigan call him and he would take care of it. Respondent is adamant in insisting, however, that he found out what Flannigan was doing, and received the admission from Ms. Villani that the prescription she was offering was not for her, only once. This was after he was advised of the situation by the Department investigator. He denies Villani's claim that she told him on several occasions that the prescriptions she presented were not for her.
When Dr. Flannigan came to see Respondent at his request, only then did he admit what he had done. After that, Respondent would not fill any prescriptions written by Flannigan to any of his employees. He continues to fill other Flannigan prescriptions to bona fide patients.
Regarding the prescriptions presented by Ms. Norris, Respondent admits that he would have asked the question about her throat if he knew what her medical profile was. However, he strongly contends that if, as she states, she advised him that the prescription was not for her, he would have asked her more,
including who it was for and for what purpose it was written. If, in that case, she did not have a satisfactory answer, he would not fill the prescription. He further contends that had he known the drugs were for Flannigan, he would not have filled the prescription Ms. Norris gave him. He repeatedly asserts he stood to gain nothing by providing Flannigan with controlled drugs through this scheme. When it was suggested by Petitioner's counsel that a valid reason would be to maintain Dr. Flannigan's good will because of the volume of prescriptions he writes, Respondent astutely responded that Dr. Flannigan does not write enough prescriptions totally, throughout his practice, for him to risk his license on the potential for future business and this is accepted.
The last prescription Respondent filled for Ms. Villani which is alleged in the Complaint was presented on November 11, 1986. This was at least several months before the conversation he had with her in September, 1987, in which Ms. Villani admitted that the prescription was not for her but was for Dr. Flannigan. He is sure that prior to that prescription, and all during the time he honored the prescriptions which form the substance of the complaint against him, Ms. Villani never told him the prescriptions she had him fill were for Flannigan. He recalls seeing her in the store often and has had many conversations with her, but, characterizing her as somewhat "spacey and illogical in conversation", he denies ever having knowingly filled a prescription for her which was intended for Flannigan. In addition, he contests her assertion that his brother, Peter, filled a prescription for her since Peter is not a pharmacist and, though he works in the store and may have filled other orders for Villani for non-controlled medical supplies, he is not permitted to work in the pharmacy and fill prescriptions.
Turning to the issue of an economic motive for filling the illegal prescriptions, and relating it to his prior comment about the volume of Flannigan's prescription business not justifying Respondent's risk of his license to get it, examination of his records indicated to Respondent that over the period of their relationship, Dr. Flannigan's prescriptions in the past year have amounted to approximately 3 to 4 thousand dollars valuation. In that same year, Respondent's gross sales in the pharmacy were 1.8 million dollars. Therefore, Flannigan accounts for a very small percentage of the overall business, and while he might have made some profit filling the bad prescriptions, the amount involved was not nearly big enough to justify risking his license.
In addition, in February, 1987, Respondent opened a second store on South MacDill Avenue, in Tampa. From that point on, he spent a majority of his time at that store, remaining there at least five days a week during the normal business day. He admits he was in his main store approximately 30 minutes out of every day, performing administrative functions such as checking mail, signing checks, and the like. Rarely, during that time, did he work in the pharmacy there.
Based on the above, the evidence appears to be in equipoise. On the one hand, three employees of Dr. Flannigan have indicated that at various times they presented false prescriptions to Respondent for controlled substances intended for Flannigan which Respondent filled knowing that the ultimate receiver was not the individual whose name appeared on the prescription. On the other hand, Respondent unequivocally and frankly denies knowledge of the situation at the time the prescriptions were presented and asserts that when he discovered the true situation, he immediately declined to fill any more prescriptions of this nature. This equipoilent situation must be evaluated in light of the surrounding evidence. On one side is the testimony of the three
individuals which, while it is certain as to what Respondent may have been told, is uncertain as to exact times the conversations were held. This is not to state that these witnesses do not, at this point, truly believe what they say, and it is recognized that, as counsel for Petitioner points out, they jeopardize their position by admitting to what might be classified as criminal behavior.
On the other side, Respondent was unequivocal in denying any knowledge of the true nature of the questioned prescriptions. He also presented the testimony of three individuals, all of whom are responsible, significant individuals in the community, who are familiar with his reputation for truth and veracity in the community. All three, Dr. Caspar, Mr. Quigley, and Mr. Brynjolffson, one a physician and the others financial leaders in the community, indicate his reputation in that regard is excellent. Two, Quigley and Brynjolffson, related Respondent has been asked to be a bank director in their organization and as a result thereof, has undergone a strenuous and comprehensive background investigation by the Federal Bureau of Investigation and been determined to be completely free of misconduct or disqualification.
Dr. Caspar also indicated that in addition to Respondent's excellent reputation for truth and veracity, he has a reputation for being a tough pharmacist who calls and questions any odd prescription.
Taken together, and considering the evidence as a whole, evaluating and measuring the relative probabilities and improbabilities of the testimony, it must be concluded that the evidence is insufficient to clearly and convincingly establish that at the time Respondent filled the prescriptions for controlled substances alleged in the Administrative Complaint, he knew the prescriptions were false.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
The burden of proof in this case is on the Petitioner, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). This burden must be met by clear and convincing evidence of Respondent's guilt, Ferris v. Turlington, 510 So.2d 292, (Fla. 1987).
In the Administrative Complaint filed herein, Petitioner seeks to discipline Respondent's license as a pharmacist for two counts of dispensing a controlled substance outside the course of the professional practice of pharmacy, in violation of Section 465.016(1)(i), Florida Statutes, in one case to Ms. Robinson/Norris, and in the other case to Ms. Villani.
Under the provisions of Section 465.016(2), Florida Statutes, the Board of Pharmacy may discipline a licensee if it finds him guilty of any of the grounds for discipline outlined in subsection (1) of that section. The statute provides, at Subsection (1)(e), that a license may be disciplined for:
Violating any of the requirements of this chapter; ...; or Chapter 893.
It also provides, as Subsection (1)(i), that it is grounds to discipline for:
Compounding, dispensing, or distributing a ... [controlled substance], other than
in the course of the professional practice of pharmacy.
Section 893.04(1) provides, in pari materia:
A pharmacist, in good faith and in the course of professional practice only, may dispense controlled substances upon a written order or oral prescription of a practitioner
The parties stipulated that Empirin #3, with codeine, is a Schedule III controlled substance.
A prescription is defined in Section 893.02(17), Florida Statutes, as, inter alia:
... an order for drugs or medicinal supplies ... by a licensed practitioner
... made in good faith and in the course of professional practice, intended to be filled, compounded, or dispensed by another person licensed by the laws of the state to do so.
The parties also stipulated that if Respondent had furnished the drugs called for in the prescriptions cited knowing that they were not for the individual whose name appears thereon, it would constitute a violation of Section 465, Florida Statutes as alleged.
There is no dispute that Ms. Villani and Ms. Robinson presented prescriptions to the Respondent which, though bearing their respective names as patients, were for controlled substances not intended for their use but for the use of Dr. Flannigan, the author. The only question of fact for resolution was whether, at the time he honored them, Respondent knew of the real nature of the prescriptions and for whom the controlled substances they represented was destined. It has been found he did not.
In summary, Petitioner has failed to carry its burden to establish Respondent's guilt by clear and convincing evidence. The testimony of Ms. Villani and Ms. Robinson is neither clear nor convincing as it relates to the crux of the matter, the element of Respondent's knowledge.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Petitioner enter a Final Order dismissing both Counts I and II of the Amended Administrative Complaint against the Respondent.
RECOMMENDED this 31st day of July, 1989 at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6270
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
4. - 8. Accepted and incorporated herein.
9. & 10. Accepted and incorporated herein.
18. Accepted and incorporated herein.
Bruce D. Lamb, Esquire Department of Professional
Kenneth E. Easley, Esquire General Counsel
