794 N.E.2d 706 | Ohio Ct. App. | 2003
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *430
{¶ 3} On October 4, 2000, the Board issued a summary suspension order/notice of opportunity for hearing due to its awareness of the pleas entered by appellant. Paragraph two provided that his conduct constituted being guilty of a felony or gross immorality within the meaning of R.C.
{¶ 4} A similar notice was also served on the pharmacy. The pharmacy was eventually fined $25,000. This decision was upheld by the Franklin County Common Pleas Court and the Tenth Appellate District. SeeOhio State Bd. of Pharmacy v. Dick's Pharmacy, 10th Dist. No. 02AP-241,2002-Ohio-6500.
{¶ 5} A consolidated hearing was held before the full Board on March 6, 2001. Both parties submitted various exhibits which were admitted into evidence. Agent George Pavlich and Compliance Specialist/Pharmacist Joann Predina testified for the state. Appellant also testified. He basically admitted wrongdoing but seemed to be seeking leniency and forgiveness. On April 4, 2001, the Board released its decision. The findings of fact matched the paragraph numbers in the summary suspension order. The conclusions of the law then stated: (1) *432
paragraphs two through thirteen constitute being guilty of a felony in violation of R.C.
{¶ 6} Appellant filed a timely complaint/administrative appeal in the trial court. On August 13, 2002, the court opined that although it felt that the two-year suspension and the maximum fine together were too harsh, the law prohibited the court from modifying the time period since it was supported by reliable, probative, and substantial evidence. As for the fine, the court decreased the amount from $42,500 to $25,000 based upon what appeared to be a concession in the state's brief and because the fine is to be based on that available for the criminal offenses, which the court found were ten fifth-degree felonies each with a maximum fine of $2,500. The court also held that the Board was permitted to impose both a suspension and a fine because each penalty was based upon different statutory violations. Appellant filed timely notice of appeal to this court.
{¶ 8} In this context, reliable evidence is defined as dependable evidence or that which can be confidently trusted. Our Place, Inc. v.Ohio Liquor Control Comm. (1992),
{¶ 9} The review conducted by the appellate court is even more limited than that of the trial court. Pons v. Ohio State Med. Bd.
(1993),
{¶ 11} "The trial court erred in affirming the board's order since the order of April 4, 2001 is not supported by substantial, reliable and credible evidence."
{¶ 12} Under this assignment, appellant makes various arguments. He contends that the state should have placed the physicians' records into evidence to prove that the prescriptions were unauthorized, arguing that the physicians' affidavits submitted as exhibits were unreliable hearsay evidence. The Rules of Evidence are promulgated under Section 5(B), Article 4 of Ohio's Constitution; this constitutional authority extends only to rules that govern the practice and procedure in thecourts of the state. See, also, Evid.R. 101(A). An administrative agency is not a court. As such, administrative agencies are not bound by the Rules of Evidence. Orange City School Bd. of Edn. v. Cuyahoga Cty. Bd. ofRevision (1995),
{¶ 13} Appellant also alleges that it is just as likely that the physicians' staff forgot to document every telephone prescription as it is that he created prescriptions without a physician's order. He claims that the Board disregarded his exhibit C where one physicians' staff members vouched that they phoned in prescriptions for patient three "on occasion" during the period of August 1998 through January 2000. The review period for patient three was August 1998 *434 until February 1999. It appears that the Board could have reasonably decided that the staff was remembering telephone prescriptions for the period from February 1999 through January 2000, which was after the review and after appellant changed his procedures. Additionally, the physician's records did not establish telephone prescriptions for this patient on the dates listed in appellant's records. Moreover, appellant merely submitted this exhibit as part of a packet of exhibits. He did not specifically review its contents at the hearing as the state did with its exhibits.
{¶ 14} We also note with regards to this patient and others that many of the telephone prescriptions were drafted by employees of the pharmacy in violation of Ohio Adm. Code
{¶ 15} In line with the above argument, appellant complains that the Board rubber-stamped the allegations set forth in the summary suspension order as the findings of fact appear to be copied from such order. Specifically, he argues that findings of fact numbers four and five, concerning patient number one, are unsupported because they rely on exhibits that outline three incorrect pieces of information concerning patient one's February 4, 1998 prescriptions. The agent's paperwork shows less refills than shown in the copies of the original, written prescriptions attached to that paperwork. For instance, the exhibit shows that no refills were written for Prilosec on February 4, 1998; however, a copy of the original, written prescription shows two refills. Then, the paperwork shows that no refills were written for Lipitor when the original prescription shows two refills. Finally, the paperwork shows no refills were written for Glucophage when the original prescription actually shows one refill. Appellant focuses on these mistakes because the specialist testified that she tried to give appellant the benefit of the doubt when she determined whether a patient was receiving more medicine than the doctor intended; thus, she would give credit for physician refills even though he wrote new prescriptions.
{¶ 16} Although appellant is correct when he states that the paperwork is incorrect as to those three prescriptions, this does not change the fact that he wrote new prescriptions with new prescription numbers when he was not permitted to do so. It also does not change the fact that he and his staff signed *435 prescriptions that were supposedly telephone prescriptions when no such conversation occurred regarding this patient at the times set forth in the exhibit. For instance, the Lipitor prescription written on February 4, 1998 was for thirty pills with two refills. The patient received fourteen pills initially. Then, on February 21, 1998, appellant's records show a telephone prescription for fourteen more Lipitor. This same prescription appears again on March 12, 1998 and March 24, 1998. Appellant presented his corrections to the exhibit at the hearing. Yet, the Board could still rationally conclude that the telephone prescriptions never occurred and thus appellant's records were false. It is only logical for the Board to ask itself why a physician would phone in a prescription that should not have run out yet. Lastly, appellant's own patient profile, generated from his computer records, states that the refills for these prescriptions were zero. Thus, it was probably his own work product that encouraged the mistake in the agent's paperwork. For all of these reasons, the Board's findings were not lacking in probative, reliable, and credible evidence.
{¶ 17} Appellant generally states that all prescriptions were maintenance drugs for which there was a valid, original prescription, noting that he was not dispensing drugs of abuse at his own whim. He urges that he was not engaged in a scheme to defraud UHC but rather was merely providing his customers with better service. Yet, he then states that "the only thing" he did was reduce prescriptions into smaller quantities for insurance purposes.
{¶ 18} Appellant also admitted that he committed the acts because UHC patients constituted 15 to 20 percent of his business and he would probably be out of business if he did not help the patients avoid UHC's mail order plan. He even opened post office boxes for some patients in order to ensure he would receive the reimbursement check at which time he would have the customer come in to sign the check. He testified that UHC claims that he wrongly earned $1.27 million as a result of his method of dispensing for UHC patients.
{¶ 19} In state's exhibit five and six, appellant acknowledges the violations he committed. At one point, he describes his corrective action as: "There is no authority to refill prescriptions or renew prescriptions with a new number on these general guidelines from the prescriber. The doctor will be contacted each time a prescription is to be renewed, without exception." Elsewhere, he concedes, "We understand violations have occurred in the past but we are now complying with all OSBP requirements for telephone Rx." In the taped interview with agents and on the stand, appellant admitted that he engaged in acts that were wrong. At the hearing, appellant seemed to be asking for leniency, forgiveness, and understanding; he seemed to promise that he would not engage in this behavior again. He did not argue that he was permitted to break the physicians' prescriptions into as many individual prescriptions as he desired. *436
{¶ 20} Pursuant to R.C.
{¶ 21} For all of the foregoing reasons, the trial court did not abuse its discretion in determining that the decision of the Board was supported by reliable, probative, and substantial evidence. See Dick'sPharmacy, 10th Dist. No. 02AP-241, 2002-Ohio-6500, at ¶ 36-42 (upholding the Board's decision that substantial, reliable, and probative evidence supported the findings made against appellant's pharmacy). This assignment of error is overruled.
{¶ 23} "The trial court erred in upholding the suspension since the suspension is the result of arbitrary and capricious actions of the board and is excessive, unreasonable and disproportionate."
{¶ 24} Appellant urges that we have the authority to review the reasonableness of sanctions imposed by the Board of Pharmacy. He claims that we can reduce or modify a suspension or fine. He then argues that the suspension is unreasonable, arbitrary, and capricious, especially since he was not given credit for the summary suspension and especially since he was fined $42,500 (reduced to $25,000). Appellant then points to sanctions in other Board of Pharmacy cases which were submitted to the trial court in the form of a graph. He then asks that we vacate the suspension or enter a fine no greater than $5,000.
{¶ 25} We have previously explained that the trial court is not empowered to modify a sanction where the court determines that the alleged violations were committed by the licensee but believes that the agency imposed too harsh of a penalty. Sprankle v. Ohio Dept. of Ins.
(Sept. 10, 2001), 7th Dist. No. 00CA275 (overturning a trial court decision that modified a license revocation and instead imposed a one-year suspension), citing Henry's Café, Inc. v. Board of LiquorControl (1959),
{¶ 26} "Unquestionably, the Court of Common Pleas may reverse, vacate, or modify an order of an agency unless it finds that the order is supported by reliable, probative and substantial evidence, but, where it makes such a finding, it can only affirm and cannot reverse, vacate or modify. * * * [T]here are no grays in such areas, but only blacks and whites. There are no violations under extenuating circumstances, but only facts which do or do not constitute violations. The Court of Common Pleas found that there were violations * * * Patently desiring to modify the admittedly harsh order of the board, the Court of Common Pleas could find no such absence of evidence and, as an alternative route to the same end, found that `the board abused its discretion' and modified its order on that ground." Id. at 236.
{¶ 27} The Supreme Court concluded by holding that the trial court had no jurisdiction to modify a penalty where the order finding violations was supported by reliable, probative, and substantial evidence. Id. at 236-237 (reversing the trial court's modification). This decision and our interpretation of it have been reaffirmed by the Supreme Court subsequent to the Henry's Café decision. Dept. of LiquorControl v. Santucci (1969),
{¶ 28} In our denial of the application to reopen the Sprankle
case, this court also reviewed the appellate case law applying Henry'sCafé to reverse trial court cases that modify administrative penalties where those penalties exist as options in the law. Sprankle v.Department of Ins. (Dec. 7, 2001), 7th Dist. No. 00CA275, citing HiRise, Inc. v. Ohio Liquor Control Comm. (1995),
{¶ 29} Thus, appellant incorrectly states that we may modify his suspension and/or fine if we believe it is too harsh or unfair. Because we find under the first assignment of error that appellant's wrongdoing is established by reliable, probative, and substantial evidence and is in accordance with the law, then we may not modify a penalty or a fine that is within the applicable bounds of the administrative agency's authority. There is no argument that the suspension in and of itself is outside these bounds. See R.C.
{¶ 31} "The trial court erred in upholding any fine against Richard Petrilla since the fine was not authorized pursuant to R.C.
{¶ 32} Under this assignment, appellant argues that the Board was not permitted to impose any fine because the Board suspended his license. He contends that the penalties are mutually exclusive. He relies on the language of R.C.
{¶ 33} "(1) Guilty of a felony or gross immorality; (2) Guilty of dishonesty or unprofessional conduct in the practice of pharmacy; (3) Addicted to or abusing liquor or drugs or impaired physically or mentally to such a degree as to render the pharmacist or pharmacy intern unfit to practice pharmacy; (4) Has been *439
convicted of a misdemeanor related to, or committed in, the practice of pharmacy; (5) Guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of any of the provisions of this chapter, sections
{¶ 34} The state points out that the suspension was imposed due to the Board's first and second legal conclusions that appellant violated R.C.
{¶ 35} First, the state points to the following holding of the Eighth Appellate District:
{¶ 36} "R.C.
{¶ 37} Then, the state points out that the Tenth Appellate District held:
{¶ 38} "As to appellant's claim that neither [statute with language identical to R.C.
{¶ 39} Here, the Board identified three separate violations of specific Revised Code sections and merged two for the purposes of the penalty. Appellant argues in his reply brief that the sanctions were based upon the same conduct and just because the state can fit that same conduct into different statutory violations does not mean that it can assess separate sanctions. The Eighth and Tenth District cases do not require separate types of acts to constitute separate violations. Rather, they merely require the identification and finding of separate violations. The statute lists various types of violations under the available penalties, and there is no indication that the statute is meant to be read as appellant argues.
{¶ 40} Additionally, there was separate conduct in this case. That is, the suspension was based partly upon a finding that appellant submitted false prescriptions claims to the insurer and received money from said submissions. See Findings of Fact, paragraph three, and Conclusions of Law, numbers one and two. Yet, the fine was based upon appellant filling and dispensing false prescriptions to customers. See Findings of Fact, paragraph four through thirteen, and Conclusion of Law, number three.
{¶ 41} Moreover, we have five different patients at issue in this case, which were each written between twelve and two hundred fifty three unlawful prescriptions. Thus, there is more than one violation. Under appellant's argument, a pharmacist illegally dispensing a dangerous drug such as oxycodone to street dealers could sell thousands of bottles to thousands of customers/dealers but only be subject to one penalty, either a revocation or a fine. We refuse to adopt such a holding. This assignment of error is overruled.
{¶ 42} For the foregoing reasons, the decision of the trial court is hereby affirmed.
Judgment affirmed.
Donofrio and DeGenaro, JJ., concur. *441