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In a News Leader statewide review of all 2016 Virginia case decisions, not a single pharmacist was suspended for repeated mistakes or recurring improper behavior, even if that pharmacist had a prior history of such behavior.
Additionally, the licenses that pharmacists must display at their work locations do not mention if the pharmacist is under probation. Their status is still considered “current and active.”
Then there is simply the time it takes to investigate complaints.
The lag between when pharmacist under suspicion of wrongdoing receives a board notice of a hearing and when the public has a chance to find out about the board’s eventual disciplinary action is sometimes more than a year. In the interim, a pharmacist under investigation for serious violations can continue to practice, potentially endangering more consumers.
During this time, no information is available to customers.
While the board has the power to summarily suspend a license until a hearing can be held with a pharmacist regarding behavior endangering the public, it did not do so a single time for any local pharmacist in the six and a half years of case decisions examined by The News Leader.
Summary suspensions were given to pharmacists or pharmacist technicians who were stealing drugs for their own personal use, and upon discovery that a pharmacist or technician had a felony conviction, but not for behavior such as dispensing the wrong drug or wrong dosage to customers — even when there is evidence of repeated mistakes of that type.
Board members sometimes have disciplinary records themselves
Department of Health Professions communications director Diane Powers turned down multiple requests from The News Leader to interview the current head of the pharmacy board regarding transparency issues. “As health regulatory board Orders speak for themselves and based on review of the information provided a call may not be necessary,” she wrote in early November.
She also declined comment on the lengthy history of orders regarding area pharmacist Patricia Roper, noting that “the board speaks through its Orders and as you probably are aware, each case is thoroughly evaluated to determine if and what form of disciplinary action is warranted.”
Matt Treacy, communications associate for the department, said in response to another request for an interview, “The views of an individual board member do not represent the views of the Board.”
Yet it is often individuals — as few as two meeting in an informal conference committee — and not the entire board of 12 members, who decide cases through consent orders drawn up after meeting informally with the pharmacist. And board members do not serve long terms.
While the board may have an institutional memory of past violations through its record of orders, it does not make a practice of suspending a pharmacist’s license based on those repeated violations.
None of the pharmacists involved in Board of Pharmacy case decisions regarding Patricia Roper are still members of the board today. Two are deceased, one is no longer practicing pharmacy, and one could not be found at all on the state’s License Lookup site.
Two of the board members who presided over Roper’s violations faced board discipline themselves — and the difference in the disciplinary actions taken against them reveals the inconsistencies of self-policing agencies.
William Tiffany, who was a member of a board special committee for two of Roper’s hearings, was brought before the Board in 1979 for dispensing a single prescription incorrectly to a board investigator, according to state records.
For this one finding of fact his license was suspended for 60 days. Twenty years later, Tiffany chose not to exercise the board’s authority to suspend Roper’s license, despite being faced with evidence of dozens of dispensing infractions — on two separate occasions, in 1998 and 1999. In the second case, Roper was already on probation and still committing errors.
Carthan Currin, who along with Tiffany sat on the special committee which in 1999 lifted Roper’s probation, was disciplined by the board in 1983, according to state records.
He was investigated for a much longer list of errors than Tiffany. The board found that he “failed to maintain complete and accurate records,” including failing to properly date more than 200 prescriptions for schedule II drugs — defined as substances which “have a high potential for abuse which may lead to severe psychological or physical dependence,” according to the Controlled Substance Act.
An audit found a shortage of drugs in the pharmacy, numbering more than 18,000 missing tablets of highly addictive controlled substances.
Included in that total were 10,000 Valium 5mg tablets, 2,282 valium 2mg tablets, 5,012 Darvocet N (oxycodone) 100mg tablets, and 555 Percodan tablets, according to state records.
For these violations Currin was charged a “civil monetary penalty” of $1,000. No suspension, no probation, no reprimand on record. The fine would not come close to covering the retail value of the missing drugs.
Two pharmacists. For one, a dispensing error resulted in a 60 day suspension. For the other, a shortage of 18,000 drugs amounted to a small fine.
Underdisciplining of medical professionals a national problem
“What seems to be going on is unfortunately very much part of a pattern of light-touch oversight by self-policing boards in health specialties across the country. Swift they are not. Stern they are not. And, above all else, they tend to opt for secrecy over openness too frequently.”
That’s William Heisel, the contributing editor for the USC Center for Health Journalism, in a response to an email query from The News Leader about Roper’s case history and the delay in making public the information about Augusta Health inspection. “I’d be flying a little blind to comment specifically on the Virginia Board of Pharmacy, but I can comment in general on these self-policing regulatory boards, as I have spent a good deal of my career researching them.”
The problems inherent in self-policing boards are not limited to Virginia, and reach across the spectrum of health practices. Typically it’s doctors and surgeons who draw the attention of national watchdog groups.
Heisel profiled dangerous doctors on his Antidote blog, and wrote in 2011 about the hidden danger — not that doctors are not disciplined, but that they are allowed to continue to practice after disciplinary hearings: “Despite the fact that the 51 doctors I profiled were responsible for injuring or killing 290 patients, including overdosing patients, blinding patients, and diagnosing patients incorrectly, 82% of the doctors were still in practice as of December 2010.”
The nonprofit watchdog group Public Citizen notes that “there is considerable evidence that most boards are underdisciplining physicians.”
The group compares the number of serious actions (suspension, revocation of license) taken against physicians per 1,000 licensed physicians in each state. While the Public Citizen surveys physicians, it is instructive to apply the same metric to get a feeling for the number of serious disciplinary decisions meted out by this state’s pharmacy board
In a statewide review of all case decisions published by the Board of Pharmacy in 2016 through Dec. 19, the News Leader found a total of 796 published pharmacy board case decisions.
In that time period, 20 pharmacists and pharmacist techs were seriously disciplined — had their licenses suspended or revoked.
There are currently 37,125 licensed pharmacists and pharmacist technicians in the state.
This comes to a ratio of only one serious action taken for every 1,856 licensed pharmacy professionals in the state.
Put in Public Citizen’s ratio of serious actions per 1,000 licensed professionals, it comes out to 0.54 serious actions taken per 1,000 pharmacy professionals.
This low number may be further skewed by the type of behavior that leads to suspension.
For instance, two pharmacists had their licenses suspended for “dishonored payment,” failing to pay an annual fee to the Department of Health Professions. (One had his license reinstated as soon as the fee was paid.) These pharmacists were not suspended for posing a danger to the public, but rather for not paying a small fee.
One pharmacist surrendered her license for diverting over 12,000 pills for her personal use. Her pharmacist-in-charge was reprimanded, though not suspended, for allowing the diversion of pills to happen. The pharmacist-in-charge did not have any prior record with the pharmacy board.
These pharmacists did not pose a direct threat to the public — there was no finding of fact that their incompetency led to a harmful situation for consumers.
But what if one of them did have a prior record with the board? Would that have made a difference?
In our review of 2016 cases, we found records on pharmacist Gino Bortoluzzi in Norfolk, who between May and November of 2015 failed to take the necessary steps to prevent the diversion of controlled substances, resulting in the loss of over 10,000 tablets including 6,235 methadone tablets, 4,786 oxycodone tablets, the state found.
He also admitted that he “returned drugs that were not picked up to the drug stock and still charged the insurance company,” according to the board’s order. He gave the key and alarm code to a non-pharmacist.
Like the pharmacist-in-charge mentioned above, he was reprimanded for enabling the diversion of tablets.
But unlike the other pharmacist who was given a reprimand, Bortoluzzi also has a record with the board.
In 2009 Bortoluzzi was found to have dispensed “approximately 36,143 prescriptions for Schedule VI controlled substances when no physician-patient relationship existed,” as well as “dispens(ing) prescriptions from out of state practictioners without verifying that the prescriptions complied” with multiple chapters of the Virginia Code. He “failed to offer counseling to the customers who received their prescriptions by mail.”
Bortoluzzi was fined $50,000, though $45,000 was stayed “contingent on Mr. Bortoluzzi taking and passing the Virginia Drug Law Examination.” Bortoluzzi was also given a reprimand.
Seven years later, Bortoluzzi got the same disciplinary measure for allowing the diversion of controlled substances as did a pharmacist with no prior record at all.
The Department of Health Professions’ latest quarterly report shows that state medical boards have 3,373 open cases, with 431 of those cases being with the Board of Pharmacy.
Which doctors and pharmacists are being investigated? How many of them ply their trade in our towns and cities? We have no way of knowing.