97-004114 Board Of Pharmacy vs. Tom B. Atkinson Status: Closed Recommended Order on Friday, April 17, 1998.

Summary: Petitioner's alcoholic dependence must be treated before he can practice pharmacy with reasonable skill and safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

BOARD OF PHARMACY , )

)

Petitioner , )

)

vs. ) Case No. 97-4114

)

TOM B. ATKINSON , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing in this matter was conducted on January 23,

1998, and February 13, 1998, in Jacksonville, Florida, before

Suzanne F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Craig A. McCarthy, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman,

Bryant, & Yon, P.A.

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Respondent has violated Sections

465.016(1)(d) and 465.016(1)(m), Florida Statutes (1995), and if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner Department of Health (Petitioner) filed an

Administrative Complaint against Respondent Tom B. Atkinson

(Respondent) on June 18, 1997. Said complaint alleged that

Respondent's license to practice pharmacy should be disciplined

pursuant to Section 465.016(1)(d) and 465.016(1)(m), Florida

Statutes (1995). Respondent requested a formal hearing to

contest every material allegation set forth in the complaint.

Petitioner referred this matter to the Division of

Administrative Hearings on September 4, 1997. A Notice of

Hearing scheduled the case for formal hearing on November 24,

1997.

On November 18, 1997, Petitioner filed a Motion for

Abeyance. After hearing oral argument, the undersigned entered

an Order Granting Continuance and Rescheduling Hearing.

The formal hearing commenced on January 23, 1998. During

the hearing, the undersigned granted Petitioner's ore tenus

motion to continue the case due to the unavailability of

witnesses. The hearing reconvened and concluded on February 13,

1998.

Petitioner presented the testimony of three witnesses and

offered 11 exhibits for admission into evidence. The undersigned

ruled that Exhibit numbers P1 and P7 through P12 were admissible.

Exhibit number P6 was not offered as evidence.

The undersigned reserved ruling on the admissibility of

exhibit numbers P2 through P5. These exhibits are hereby deemed

admitted.

Respondent testified on his own behalf and presented the

testimony of two witnesses. He offered no exhibits for admission

into evidence.

A transcript of the proceeding was filed on March 10, 1998.

Respondent filed a Proposed Recommended Order on March 20, 1998.

Petitioner filed Proposed Findings of Fact and Conclusions of Law

on March 23, 1998.

FINDINGS OF FACT

1. Respondent has been a licensed pharmacist in the state

of Florida at all times material to this case. His license

number is PS 0010807.

2. Respondent graduated from pharmacy school at the

University of Georgia in 1963. After graduation, Respondent

worked as a pharmacist in South Georgia for a couple of years.

3. From 1967 until 1985, Respondent owned a pharmacy in

Atlanta, Georgia.

4. While Respondent owned his own pharmacy in Atlanta,

Georgia, he took anti-inflammatory and muscle-relaxing drugs for

a back injury. Respondent took these drugs without a

prescription over a ten-year period.

5. Respondent admits that he sold a bottle of prescription

cough syrup to an individual who did not have a prescription in

July of 1967. Respondent was arrested but not convicted for

selling the cough syrup.

6. In February 1981, Respondent sold one hundred tablets of

Preludin, a controlled substance, to an individual without a

prescription. As a result, Respondent was arrested and pled nolo

contendere in a criminal case.

7. The Georgia State Board of Pharmacy suspended

Respondent's license to practice pharmacy for three years

beginning March 6, 1981. His Georgia license was reinstated on

probationary status in May 1983.

8. Respondent became involved in a scheme known as

"pharmoney" in which clinical and hospital drugs were diverted

under false pretenses and returned to wholesale marketing

channels. In October 1985, Respondent pled guilty and was

convicted of mail fraud in the United States District Court for

the Northern District of Georgia. He subsequently served nine

months in a federal prison.

9. As a result of the federal conviction, the Florida Board

of Pharmacy disciplined Respondent's license to practice pharmacy

in September 1987. The Florida Board of Pharmacy placed

Respondent on five years' probation. The probation was to

commence when Respondent began practicing pharmacy in Florida.

10. Respondent moved to Florida in 1988. Since that time,

Respondent has procured employment through the services of a

temporary employment agency. He has worked in pharmacies located

in stores owned by Pic-N-Save, Drug Emporium, Wallgreen's, and

Winn Dixie.

11. In 1993, Respondent stole a Valium for his own use from

a Wallgreen's pharmacy. Respondent did not have a prescription

for Valium.

12. Between 1991 and 1993, Respondent obtained prescription

sleeping pills for his personal use from the stores where he was

working. Respondent did not have a prescription to purchase and

use the pills.

13. In 1994, Respondent was falling asleep at work and

while driving. He was diagnosed with severe obstructive sleep

apnea in October 1995. Respondent began using a machine at night

to help him breathe. About a year later, Respondent fell asleep

at work again.

14. In August 1995, Respondent was working in a Winn Dixie

pharmacy. He used a screw driver to open the narcotics cabinet

because he did not have key. He did not follow company policy

and refer the customer to another dispensing pharmacy rather than

compromise the narcotics cabinet.

15. After he became a pharmacist, Respondent began drinking

heavily and routinely in his pharmacy around closing time.

Respondent never received a ticket for driving under the

influence (DUI). However, he admits that he occasionally would

have qualified for a DUI if he had been stopped by a policeman on

his drive home from work.

16. Respondent admits that he drank heavily on other

occasions. First, he drank more than he should have during a two

or three-month period in 1987 after his release from prison.

Second, he became intoxicated when he was terminated from Pic-N-

Save in 1991.

17. Respondent made a deliberate decision to stop drinking

alcohol when he was 40 years old. He stopped drinking for about

one year. Respondent stopped drinking because he believed that

his alcohol consumption was contributing to errors in his

judgment and causing him legal problems.

18. Respondent continues to drink alcohol, usually two

drinks twice a week. He denies that he has a alcohol-related

problem or that he is alcohol-dependent. His testimony is not

persuasive.

19. In 1996, Respondent's employer believed that Respondent

had a drug or alcohol problem. The employer requested Respondent

to contact the Physicians Recovery Network (PRN). PRN referred

Respondent to Dr. Raymond Pomm, Medical Director of River Region

Human Services.

20. Dr. Pomm evaluated Respondent on December 13, 1996.

Dr. Pomm's report and testimony are based in part on Respondent's

self-reported history including, but not limited to, his drug and

alcohol usage, criminal activities, and family background.

21. Dr. Pomm correctly diagnosed Respondent as alcohol-

dependent in sustained partial remission. Dr. Pomm found that

Respondent exhibited strong evidence of poly-substance abuse

which needs to be ruled out. Dr. Pomm's diagnostic impression

notes Respondent's history of mood disorder, not otherwise

specified (NOS.)

22. Dr. Pomm recommended that Respondent undergo treatment

for his alcohol dependence as an inpatient and/or through a half-

way house community treatment program. In such a program,

therapists could observe, rule out and treat the possibility that

Respondent has a personality disorder, NOS, with narcissistic and

antisocial features.

23. At the hearing, Dr. Pomm correctly testified that

Respondent was not able to practice pharmacy with reasonable

skill at the time of the December 1996 evaluation. According to

Dr. Pomm, Respondent's potential for improving without

appropriate treatment is not very high.

24. Dr. Roger Goetz testified as an expert on impairment in

health care professionals. He is an expert in reviewing and

assessing medical records, including psychological evaluations,

of health care workers to determine their ability to practice.

25. Dr. Goetz reviewed Respondent's medical records. These

records included, but were not limited to, Dr. Pomm's

psychological summary and a multidisciplinary assessment prepared

by the Rush Behavioral Health Center in Chicago, Illinois.

26. Dr. Goetz provided credible testimony that Respondent

has an impairment which prevents him from being able to practice

pharmacy with reasonable skill and safety. Dr. Goetz was

particularly concerned with the possibility that Respondent's

impairment stemmed from narcissistic and antisocial personality

disorders rather than alcohol dependence or other substance

abuse.

27. In February 1997, Respondent was evaluated over a

period of days at the Rush Behavioral Health Center in Chicago,

Illinois. The center has one of the premier psychiatric

evaluation systems in the United States.

28. Respondent provided the evaluators at the Rush

Behavioral Health Center with extensive background information

regarding his drug and alcohol usage, criminal activity, social

and job-related problems, and family background. Additionally,

the evaluators considered the following: (a) background

information provided by PRN; (b) a psychiatric summary dated

December 13, 1996, prepared by Dr. Pomm; (c) psychological

summaries and medical records furnished by other doctors;

(d) clinical summaries submitted by members of the Rush

Behavioral Health assessment team; (e) computer-generated results

of an M.M.P.I., Millon and Quickview Social History based on

information furnished by Respondent; and (f) telephonic

conferences conducted by Rev. Malin of Rush Behavioral Health

with individuals familiar with Respondent.

29. The Rush Behavioral Health assessment team made the

following diagnosis regarding Respondent's mental and physical

condition:

Axis I : Probable Alcohol Dependence in

sustained partial remission. Other substance

abuse. Breathing-related sleep disorder.

Possible substance-induced sleep disorder.

Occupational problem.

Axis II : Antisocial personality disorder.

Narcissistic personality disorder.

Axis III : Obesity.

Hypertension. Benign Prostatic Hypertrohpy.

Axis IV : Problems with the primary support

group. Problems related to the social

environment. Occupational problems.

Problems related to interaction with the

legal systems. Other psycho-social and

environmental problems.

To the extent that the Rush Behavioral Health assessment is

consistent with the testimony of Dr. Pomm and Dr. Goetz, it

provides competent evidence of Respondent's inability to practice

pharmacy with reasonable skill and safety. 1

30. Dr. John Schulte is a licensed clinical psychologist.

From April 1997 through November 1997, Dr. Schulte treated

Respondent for anxiety and "situational" depression. Dr. Schulte

saw no indication that Respondent had an psychopathological

impairment in Respondent. Dr. Schulte's testimony is contrary to

more persuasive evidence.

31. Respondent's pattern of behavior over the years

indicates that it would be dangerous for him to work in a

pharmacy dispensing drugs to himself or the public at the present

time. This behavior includes his personal use of prescription

drugs without a prescription, his impulsive behavior in using a

screwdriver to open the narcotics cabinet, his inability to

maintain a job, and his criminal activities referenced above.

32. Respondent has an impairment due to his alcohol

dependence which requires treatment. Until he receives that

treatment, the experts cannot rule out the possibility that

Respondent has narcissistic and antisocial personality disorders.

Without appropriate treatment, Respondent cannot practice

pharmacy with reasonable skill and safety.

33. Respondent attended an inpatient treatment center in

Atlanta, Georgia. He checked out after one week against medical

advice. Respondent has never received any other treatment for

alcoholism, substance abuse, or psychological problems.

34. In March 1997, Respondent signed an form authorizing

PRN to release information relative to his alcohol/chemical

dependence or his psychiatric/psychological condition. The

authorization permitted PRN to disclose this information to

Petitioner for the purpose of administrative action.

35. Petitioner issued its Administrative Complaint against

Respondent in June of 1997. Respondent attempted to revoke his

consent for PRN to release information to Petitioner in November

1997.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceedings. Sections 120.569(1) and 120.57(1), Florida

Statutes.

37. Petitioner must prove by clear and convincing evidence

that Respondent's license to practice pharmacy should be

disciplined pursuant to Sections 465.016(1)(d) and 465.016(1)(m),

Florida Statutes. Petitioner has met its burden on both counts.

38. Sections 465.016(1)(d) and 465.016(1)(m), Florida

Statutes, set forth the following as grounds for disciplinary

action:

(d ) Being unfit or incompetent to practice

pharmacy by reason of:

1. Habitual intoxication.

2. The misuse or abuse of any medicinal drug

appearing in schedule set forth in chapter

893.

3. Any abnormal physical or mental condition

which threatens the safety of persons to whom

he might sell or dispense prescription,

drugs, or medical supplies or for whom he

might manufacture, prepare, or package, or

supervise the manufacturing, preparation, or

packaging of, prescriptions, drugs, or

medical supplies.

* * *

(m ) Being unable to practice pharmacy with

reasonable skill and safety by reason of

illness, use of drugs, narcotics, chemicals,

or any other type of material or as a result

of any mental or physical condition. A

pharmacist affected under this paragraph

shall at reasonable intervals be afforded an

opportunity to demonstrate that he can resume

the competent practice of pharmacy with

reasonable skill and safety to his customers.

39. Respondent has an impairment related to his alcohol

dependence which requires treatment before he can safely practice

pharmacy. He has used prescription drugs without a prescription

to medicate himself. Most importantly, Respondent has refused

treatment which could rule out the possibility that he has

narcissistic and/or antisocial personality disorders.

40. Respondent exhibits behaviors that make it dangerous

for him to practice pharmacy. Clear and convincing evidence

indicates that he is unable to practice pharmacy with reasonable

skill and safety.

41. Rule 64B16-30.001, Florida Administrative Code,

indicates that revocation of Respondent's license is appropriate

in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that Petitioner enter a Final Order

revoking Respondent license to practice pharmacy.

RECOMMENDED this 17th day of April, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April , 1998.

ENDNOTE

1 / It is otherwise ignored as hearsay and not available for fact

finding. Section 120.57(1)(c), Florida Statutes.

COPIES FURNISHED:

Craig A. McCarthy, Esquire

Agency for Health

Care Administration

Post Office Box 14229

Tallahassee, Florida 32319-4229

William M. Furlow, Esquire

Post Office Box 1877

Tallahassee, Florida 32302

John Taylor, Executive Director

Department of Health

Board of Pharmacy

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel

Department of Health

Building 6, Room 102-E

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary

Department of Health

Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.