Wednesday, September 9, 2015

C.A. Upholds Pharmacist’s Penalty in $1 Million Drug Theft

Panel Says Supervisor Responsible for Allowing Employee’s Scheme to Go Undetected


The pharmacist-in-charge at a San Fernando Valley Target store was properly disciplined in connection with an employee’s theft of painkillers with a street value of more than $1 million, the Court of Appeal for this district has ruled.
Div. Eight Wednesday ordered publication of its Aug. 6 opinion affirming the denial of Andrew M. Sternberg’s petition for writ of administrative mandate.
The court agreed with the California State Board of Pharmacy and the trial judge that a pharmacist-in-charge is responsible for violations of Business and Professions Code §4081, which requires that all controlled substances and dangerous drugs received by a pharmacy be accounted for, even if the drugs were ordered and stored by another employee without the pharmacist-in-charge’s knowledge.
Sternberg, a pharmacist for more than 30 years with a previously unblemished record, was in charge of the Target pharmacy in West Hills during the 18 months between 2006 and 2008 that Imelda Hurtado, a pharmacy technician, was scheming to acquire and sell Norco, a drug normally used to treat moderately severe to severe pain.
As the scheme was laid out in proceedings before the board, Hurtado would order 3,000 Norco tablets at a time from the manufacturer, placing the orders from her home phone. She would have the tablets delivered on days when she was scheduled to work, destroy the delivery records, and hide the pills in a storeroom, moving them to her car when the pharmacist on duty took a break
The pills then were apparently sold on the street by Hurtado’s boyfriend. Norco tablets cost the pharmacy about $1 each, retail for about $1.25 to $1.50 each, and can sell for as much as $5 each on the street.
Hurtado obtained more than 216,000 tablets before Sternberg stumbled upon the scheme when he found a bottle of 500 Norco tablets—the pharmacy didn’t normally stock the drug—while looking through a box of syringes in the storeroom. He immediately notified his superiors, who began in investigation, unbeknownst to the other employees.
Hurtado was arrested after she was surreptitiously video recorded moving several bottles to her car.
The pharmacy board, in addition to revoking Hurtado’s technician’s license, brought disciplinary proceedings against Target and Sternberg. Target agreed to settle the matter by accepting five years’ probation, paying a $100,000 penalty, and providing 100 hours of free health-related services to the community.
Six Charges
Sternberg, however, contested all six of the charges against him, which included violation of §4081 and related statutes and regulations; failing to maintain records of acquisition and disposition for three years; allowing a nonpharmacist—Hurtado—to order and sign for three deliveries of the Norco;  failing to properly supervise Hurtado and allowing her to steal the Norco; failing to secure and maintain the facilities from theft; and failing to provide effective controls to prevent the theft of the Norco and maintain records for the drug.
A hearing was held before an administrative law judge, Ralph Dash, who sustained all charges except failure to secure facilities, and recommended a public reproval. The board, however, rejected the proposed decision, decided the matter on the basis of the administrative record, and imposed a stayed license revocation with three years on probation.
In doing so, the board noted that Sternberg would have discovered the thefts earlier if he had randomly and periodically audited the pharmacy’s invoices and inventory, and that he had acknowledged having the “discretion” to do so. He also should have instituted standard security procedures such as closing the pharmacy during periods when there was no pharmacist present, the board said.
Retired Los Angeles Superior Court Judge Robert O’Brien, sitting on assignment, denied mandamus relief. He held, upon independent review, that the board’s findings sustaining all six charges were supported by the evidence, that the discipline was commensurate with the findings, and that the penalty was not an abuse of the board’s discretion.
Substantial Evidence
Justice Madeleine Flier, writing for the Court of Appeal, said O’Brien’s findings were supported by substantial evidence and that his ruling was correct as a matter of law.
Unlike the criminal law, the justice noted, licensing statutes do not necessarily include a knowledge requirement. In enacting §4081, she noted, the Legislature expressly included a knowledge requirement for criminal liability, but not for licensing discipline.
Imposition of strict liability, Flier said, “supports the purpose of protecting the public by encouraging pharmacists-in-charge to take necessary precautions to adequately supervise and maintain the inventory of dangerous drugs.”
She rejected Sternberg’s hypothetical argument that under the board’s interpretation, a pharmacist could be held responsible if a burglar broke in and stole drugs overnight, and the pharmacy could not account for those drugs the next day.
“The simple response is that Hurtado did not burglarize the Target pharmacy overnight, but took advantage of Sternberg’s inadequate inventory procedures to steal a massive quantity of Norco over an 18-month period,” the justice wrote. “But even if a pharmacy is burglarized as in Sternberg’s hypothetical, section 4081 requires the pharmacist-in-charge to maintain an inventory of dangerous drugs, so if he or she is unable to account for what was stolen, it would not be unreasonable to subject him or her to licensing discipline.”
Sternberg, who was represented by counsel before the board, represented himself on appeal. Deputy Attorneys General Thomas L. Rinaldi and Zachary T. Fanselow represented the board.
The case is Sternberg v. California State Board of Pharmacy, 15 S.O.S. 4126.

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