NC Board of Dental Examiners: An Analysis

Pharmacy Law Source has heard from state board of pharmacy members in a few states, all with the same concern. What does the US Supreme Court’s holding in North Carolina Board of Dental Examiners v. Federal Trade Commission mean to boards? How does this affect Board members?

This case arose when non-dentists in North Carolina began providing teeth whitening services. Such services under NC law did not require a dentist or licensed person to be a provider. Thus, dozens of entities opened for business to provide teeth-whitening, usually at a cost lower than at a dentist’s office.

The NC Board of Dental Examiners, the majority or which are dentists, issued “cease and desist” letters to the non-licensed entities, demanding they stop providing the service. Some of these entities contacted the Federal Trade Commission, which filed suit on their behalf. When lower courts held against the NC Board, the Board members claimed their immunity from lawsuit. The case went all the way to the US Supreme Court which held “When a controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates, the board can invoke state-action immunity only if it is subject to active supervision by the state.” SCOTUSblog.com

In short, the NC Board, being made up of dentists who had or may have had a financial interest in the decision to mail the “cease and desist” letters, created a conflict of interest which required a level of state supervision. The dentists on the NC Board needed to be subject to an authority within state government that could determine the conflict of interest and act accordingly.

The case has, to date, led to about thirty lawsuits against administrative agencies in various states.

PLS notes two issues arising out of NC Board. First, how does this affect the qualified immunity enjoyed by members of an administrative agency? Second, will this ruling adversely affect the autonomy of administrative agencies?

State boards of pharmacy exist to protect the public by regulating and overseeing the profession of pharmacy. They do not exist to promote the profession. However, most of the time from my years of observing board actions as well as a year serving on a state board of pharmacy, these two goals more often than not walk hand-in-hand.

Board of pharmacy members enjoy what is called qualified, or conditional, immunity for their acts while performing as a board member. This immunity protects the board member from legal action against the person for actions taken by the board. Though many state statutes refer only to a requirement that the board act “in good faith,” a second criteria for this immunity is that the board must follow applicable law (though not stated in many states’ immunity statutes, those states consider following the law to be implied).

However, the NC Board case brings to light an issue faced, from time to time, by many administrative agencies. These boards, always filled with a majority of practitioners of that profession, are going to be faced with financial issues that either do or seem to create a conflict of interest. An example from many states was the board of pharmacy limiting the sales of pseudoephedrine products (including the small convenience paks) to pharmacies only. Do boards that make these financial decisions in good faith according to applicable law still enjoy their qualified immunity? The answer, per NC Board, seems to be saying “Not if there exists no corresponding state supervision.”

The second question above naturally follows this point. The autonomy of a board could well be hobbled, if not endangered. Placing an administrative agency under state supervision is not going to be limited to financial issues where the decision-making entity are active participants. Is every decision made by a board of pharmacy going to be subject to supervision by an entity that 1) is not in any manner related to that profession and 2) whose motivation may be political gain? It would be hoped that such supervision would be as objective as possible, with no thoughts leaning to either financial or political gain. However, the best intentions of a non-pharmacist entity are going to be impaired by the lack of knowledge or experience in the field. And will a board act in the best interests of the people it was created to protect, or will it be unduly influenced the state looking over its shoulder? Asking the same question of pharmacists filling CS Rxs these days, and concerns over keeping a license often override all others.

And what happens when the supervision supports a decision by the board? Does the aggrieved party then have no legal recourse?

Of course they do. The court system remains available for an injured party to seek redress. This, however, begs the question: if the courts are available to seek to overturn bad law, why is the state supervision mandated by SCOTUS necessary? A party that suffers harm by an act of an administrative agency can sue in state court that the act was unconstitutional. A party that suffers harm by an act of an administrative agency can sue the board members in federal court under 14 USC 1983. In short, remedies are available without the necessity of state supervision.

(PLS recognizes that state supervision could be more timely and at much less cost for an injured party. Our criticism of NC Board is not 100%. PLS simply considers the immunity being made more qualified and the loss of autonomy to state boards to have more weight in this argument.)

PLS recognizes that this case sought to address a bad act by a state administrative agency. The NC Board of Dental Examiners did act wrongly and illegally. PLS merely contends that the entities that received the “cease and desist” orders had other and adequate means to seek legal redress without further state involvement.

DISCLAIMER: This is the legal opinion of Peter Cohron and Pharmacy Law Source. It is not the opinion of any state board of pharmacy.

Buying/Selling A Pharmacy–Why Do I NeedA Contract?

Buying/Selling a Pharmacy—Why a Contract?
In today’s litigious world, it remains amazing—if not incredible—that many people continue to seek to handle matters of an important nature without the aid of an attorney. 70% of people who should have a Will do not. Skipping the closing paperwork on “For Sale By Owner” homes only decreased substantially after banks demanded the paperwork be done or the home loan would be refused.
The sale of a pharmacy from one pharmacist to another continues to be an issue. The scenario is generally this: the older pharmacist, the owner, brings in a younger pharmacist interested in buying. An agreement (often quite fair) is verbally agreed upon that passes ownership over a series of years. Less often seen is this: “OK, give me a million dollars and on Friday, the store is yours.”
No contract. No written agreement. A firm handshake and words (which, by the way, will NOT hold up in court in most states).
“For want of a horse, the kingdom was lost” can be restated as “For want of spending a few thousand, the million dollar investment was lost.” And this happens regularly. A dispute will arise, and both parties will see things in their own way. Patient injured before the sale but Seller says it is now Buyer’s problem. Taxes levied during the year of the sale and the parties argue over who pays what percentage.
Let’s look at some of the protections a written executed agreement or contract would provide to both Buyer and Seller.

Taxes. A written agreement will spell out the date when tax responsibilities and liabilities pass from Seller to Buyer. Taxes are complicated and the sale of a business can make taxes incredibly complicated. A provision in a contract will specifically state tax dates, fiscal year, payments as well as to whom responsibility for these will belong Tax issues that cannot be separated but extend from before the sale to after, should be addressed as to the percentage of taxes owed or liability based on the amount of time the tax issue extends on either side of the sale date. Further, this provision should state that tax issues arising AFTER the sale that encompass a time period BEFORE the sale will still be the liability of the Seller. Paying an accountant to resolve these issues will cost enough; having to bring in lawyers to fight over whose responsibility the taxes can be avoided by the contract.

Ownership. “OK, give me a million dollars and on Friday, the store is yours.” “Upon receipt of payment, the pharmacy belongs to Joe Smith, RPh.” Invariably, upon that Friday, or after Joe has made 80% of the purchase price, the $750K counting machine is going to break, a big fixture is going to collapse, a customer is going to fall and get injured in the store. Buyer and Seller will argue that that part of Friday, ownership had or had not passed to Buyer. Joe is going to say he had not completed the purchase, while the Seller will say that Joe had substantially done so. A written agreement will state with specificity the date and time that ownership, with its concomitant responsibilities, duties and liabilities, passed from Buyer to Seller.
Who gets the coffeepot? What about the TV in the breakroom? It seems like the Seller is always going to have some personal property that he/she forgot. A written agreement can either list what the Seller may take upon leaving the pharmacy, state that all property in the pharmacy building belongs to Buyer upon a certain date, or it can name a date by which all personal property must be removed.

Debts. The date upon which Buyer assumes the pharmacy’s debts should be specified as to type, amount, and date assumed. A common practice, usually for tax purposes, is for people to incur debts through their corporate status. Debts should be listed in detail, as well as who is the responsible party and for how long. For example, if Seller bought a personal automobile through the corporation owning the pharmacy, Buyer would want that debt listed as Seller’s continuing responsibility mentioned in the contract.

Contracts. Every pharmacy has contracts, contracts with wholesalers, contracts with third party insurances, contracts with cleaning people, waste disposal, shredding service, etc. The written agreement to sell the pharmacy should indicate the Seller and Buyer’s responsibilities to inform the other parties in the contracts of the sale and change in ownership. Without this, many of these services have the right and will sever the contract, leaving valuable and needed services for the pharmacy unmet. The agreement should also name the contract and who—Buyer or Seller—is responsible for re-negotiating (usually the Seller will notify and the Buyer will re-negotiate).

Liabilities. Liabilities do not end with the sale of a pharmacy. The contract should state that Seller retains responsibility for any liabilities that began (whether in full or in part), took place, or were later discovered to have occurred before the sale date. Just because a claimant discovered injury months after the sale, the Buyer does not automatically assume the liability, especially if the Buyer had nothing to do with the incident. However, Seller’s malpractice insurance should cover these incidents without the Seller having to continue such coverage after full retirement. Seller should inform the malpractice carrier that he/she is no longer owner of the pharmacy.

Other employment. Seller may choose to continue working as a pharmacist. If at another location, an agreement is necessary to show Seller where and when he/she may seek employment. A written agreement should include a Non-Compete Clause, a statement that Seller will not seek employment in any environment that would directly or indirectly harm the business just sold to Buyer. This should state a specific geographic area and period of time where Seller may not work as a pharmacist, as doing so in that area and time would likely cause harm to Buyer.

Non-disclosure. This simply states that Seller will not discuss with others information about pricing, purchasing, billing, or other proprietary information that Buyer is still employing in the business of the pharmacy. Seller has a duty to maintain the trade and business secrets of the business just sold, unless a contract specifically states otherwise. For example, a pharmacist develops a new marketing strategy and uses it as her store. When she sells to Buyer, she has the contract state that she has the right to market and sell the strategy to other pharmacies. Buyer may want a price adjustment and Buyer will have to acknowledge in the contract that the strategy is not being purchased.
Dispute resolution. When a dispute arises between Buyer and Seller, a dispute resolution clause will tell them how to seek legal redress. The clause will state whether mediation or arbitration is required prior to filing a lawsuit, which state law will apply, and who has to pay for what (lawyers’ fees, court costs, etc) when the lawsuit is settled or adjudicated.

Buying and selling a pharmacy is a major step. A myriad of issues must be addressed and addressed correctly. To avoid as many pitfalls as possible, and to minimize those that do show up, a written contract between the parties can significantly reduce the friction and resolve the issues.

Pharmacy and Opioids Back Then

This morning’s newspaper had a front-page article about the opioid epidemic. I read the opening, another heartbreaking story of parents losing a child to an opioid overdose. Two full pages inside the front section continued the article, one a graphic of how opioids work in the body, the other a full page continuance of the front page article. The story could be boiled down to “It’s all Purdue Pharma’s fault.”
And let me state outright, Purdue has a lot to answer for. The company had knowledge that was withheld from prescribers. Sales techniques were full of false and mis-represented statements that prescribers (and patients) relied on.
But this article was like many articles on how to solve the opioid epidemic. One calls for reduction in production of opioids. Another states the need for education. Another shouts out for increased money for rehab facilities. The true solution to the opioid problem is not a single response, but a combination of all of the above (and more).

The same is true of how the opioid crisis came to be. As much blame as there is for Purdue Pharma, the epidemic had other contributing factors to its creation. Pharmacists today should have a working knowledge of these to understand how we got where we are today.

Pain is subjective. How much pain is someone having? There is no instrument, no blood test, to accurately measure this. We can look at heart rate, respiration rate, are the eyes teary or glassy, is the patient oriented to surroundings, etc. But overall, we still have to ask, “how is your pain on a scale of 1-10?” and rely on the patient’s lay ability to determine this. Keep in mind that in the 1980s and 90s when pain management came into vogue, the Fifth Vital Sign as it were, the tools for determining how much pain someone was having were few and far between (this has not changed a lot).

Lack of understanding. A few decades ago, research into pain and pain treatment was sparse. Some of that being done, with the inability to show objective standards or have objective tests, was slipshod and faulty. Some of this faulty information was relied on.
One story from the late 1990s: a pharmacist was going to fill an opioid prescription that was a tapering dose. The state board inspector was present; he told the pharmacist not to fill the prescription or face punishment by the board. Pain patients do not need tapering prescriptions to avoid withdrawal, the inspector stated. If the patient was truly in pain, there are no addictive effects from the use of opiates.
We all now know that to be false; pain patients can become addicted as well as anyone else. But that was the understanding of the time. The inspector was acting on what he thought to be reliable research.
And of course, what we did not know in those days was that addiction is a disease. There is a genetic component that can lead susceptible patients to becoming addicted. These people have NO desire or intent to abuse or misuse drugs. No, back in the day, addiction was a choice, a bad one, and the attitude was “let’s throw them all in jail.” There are still some professionals who deny addiction is a disease, usually based on those addicts who became so out of choice.

Eradication, not management. For decades, pain management was the elimination of pain. Being normal, it was thought, meant being out of pain totally. Despite being discussed, usually at length (when a prescriber can find the time these days to do so), statistics indicate that even today “seasoned” chronic pain patients do not seek pain management—reducing pain to a level the patient can live and function with–but the total eradication of their pain. This called (and calls) for higher doses of opioids, ofttimes with additional effects such as euphoria, which led (and leads) to abuse and misuse.

Misuse was abuse. A few decades ago, pharmacists saw all overuse of opioids as abuse. Even today, a substantial minority of pharmacists define misuse as the “abuse of a medication.” Abuse is the use of a medication for purposes other than which the prescription was written for. Misuse, better understood as time went by, is the use of a medication in dosing other than how it was prescribed for the reason it was prescribed. Misuse is a patient having a prescription for an opioid with TID dosing and taking it QID to manage her pain; she is still taking it for the prescribed reason, just more than the practitioner desired.

Rejection of other means. And here I could tell a personal story, because I was one of those who initially considered the use of beta-blockers, tri-cyclics, etc as false means of addressing pain. The idea of employing anti-seizure medications for peripheral pain or migraine prevention back then would have met with a solid wall of skepticism. Pharmacists in the 1980s did see some new and innovative approaches to pain. So what was the issue? It was two-fold: there was little research to back this up, and pain relief was usually not fast enough or strong enough for the patient. Due to these, back then many (not all) pharmacists advised patients away from these practitioners. Our motives, and the basis of them, were good, but we were wrong. So, inadvertently, the profession helped open the door for companies like Purdue.

Unscrupulous prescribers. These still exist today, but in the 1980s and early 90s those practitioners who would write for anything in exchange for cash were much more poorly regulated. These doctors had no desire to help the patients. If nothing else, they created the negative stigma that still attaches to pain management prescribers today.

Pain was and remains a significant problem in this country, and the treatment of it has many issues. Standing out among these is the opioid crisis. Drug companies like Purdue played a substantial role, and they must pay for their sins, but they were hardly the sole means by which this crisis exists today.

A Look At Contracts

Joe Pharmacist walked into my office and threw some papers on my desk. “Would you look over this contract and see if you can break it?”

As I perused the material, I murmured, “I learned in law school that there are few contracts a first year law student could not break.”

Joe sighed happily.

Some minutes later, I looked up at Joe. “You are about to start the fourth year in this contract for employment. This has been in place for three years. Why do you wan t to break it?” I knew but wanted him to say it.

And he did. “The clause that defines my salary.”

Joe brought me this contract in the years during the pharmacist shortage, when salaries jumped every year. However, the contract provision for Joe stated that he would receive X dollars per year for the next five years. It was a good salary when he started working for his employer, but three years later his pay was lagging behind the average. Two more years and he would be lagging severely behind his fellow pharmacists. This was not a contract a first year law student could break, which made Joe very unhappy.

Contracts ARE A big part of a pharmacist’s life. Buying or selling a pharmacy, setting up vendors, making agreements with providers, picking a PSAO, purchasing equipment or drugs, creating a corporation or partnership—these all call for contracts. Employment contracts are resurfacing with the end of the pharmacist shortage, though the provisions are now much more favorable to employer than employee.

This blog entry is focused on the WRITTEN contract. There are other types, such as verbal or implied contracts. However, parties and/or courts may view them differently than what is below.

Contracts are are land mines for the uninitiated. There can be, and often are, hidden provisions or phrase in provisions that a contract-naïve person is not going to catch. As one person put it to me the other day when asking I review a vendor contract. “Would you please find all the ‘gotchas’?” Above, Joe suffered a ‘gotcha’ by failing to note that his pay would remain the same annual salary for five years.

The other ‘gotcha’ that got Joe was that he did not have a lawyer review the contract. I am not going to lcture you on the need for a lawyer—you all are smart people.

Let us look, though, at what a contract is. The definition is a binding agreement between two or more parties that is meant to provide some benefit to all the parties.

What are the essential elements of a contract?
1. A MEETING OF THE MINDS. This means that all the parties understand and agree on the aims and terms of the contract.
Pharmacy hires Joe P to be a pharmacist. Joe will work 40 hours a week and be paid $100K each year for five years. Both parties understand that Joe works for Pharmacy, how much Joe works, and what Joe’s annual salary is.
2. MUTUAL ASSENT or more often “offer and acceptance.” This is usually a mutual promise by each party.
Pharmacy says, “Joe, I offer you employment at our pharmacy.” Joe responds, “I accept your offer.”
3. CONSIDERATION This states that both sides must benefit from the contract.*
Joe understands= that he will be paid a good wage for his work. Pharmacy understands that they will get a pharmacist to work.
4. LEGAL PURPOSE A contract can only be for a legal purpose. Contracts made for illegal acts are automatically void.
A contract for Joe to work at a pharmacy is legal and can be made only if Joe is a licensed pharmacist. It is an illegal act for an unlicensed person to perform the duties of a pharmacist.
5. COMPETENT PARTIES Both parties must be competent. That is, they must be able to both understand the terms of the contract as well as be able to fulfill their obligations under the contract.

Having determined what is required to make a contract, what should the pharmacist look for in one? It is made up of several provisions (also known as clauses).

1. A contract will open up with a statement of the intent of named parties to make an agreement. The important thing to look for here is to make sure all the parties are named.
2. The next provision should explain the terms of the contract, how each party benefits, the obligations of each party, the benefit for each party, etc. This is often referred to as the “Recitals.” FYI, this is where Joe P above failed to notice his pay remained the same for the five year term of the contract. Understandable in a way, as the Recitals are often quite lengthy. In his contract, salary, hours to be worked, duties to perform, length of contract, performance requirements, termination of contract, etc, were all spelled out. Though no provision of a contract should be seen as unimportant, this one may well be the most important.
3. Non-Disclosure/Non-Compete. When a contract ends, either by term of contract or by breaking (the legal word is usually “breaching”) the contract, quite often there are duties, requirements, etc that carry on afterwards. These clauses, often together, define a time period and geographic area where a departing party may not engage in work or activities that either directly or indirectly interfere with work or contractual activities of the other parties of the contract. Further, proprietary information learned during the time when the contract was in place must be protected and not disclosed to other parties, even after the contract period has ended. For example, even after five years, Joe may leave his employment but he may not disclose proprietary information about Pharmacy to its detriment.
4. Indemnification. This holds the parties responsible for any harm done by a breach of contract. It may also release some parties from certain liabilities. For example, Joe P may be required to take responsibility for any error he may commit and release Pharmacy from any liability arising from that error. Attention should be paid here to see how liabilities and responsibilities are defined for each party. Again, looking at Joe P making an error; he needs to make sure that errors due to the facilities or company policies are not his liability.
5. Integration. This may be titled otherwise, but this clause states that the agreement, or contract, is totally within the writing of the contract. He contract is the totality of the agreement between the parties. No other writing or verbal statement counts once this contract is signed. This clause may also state the conditions for amending the contract. Look carefully at these (well, OK, you need to look carefully at everything) to make sure that if amending the contract becomes necessary, it is not too difficult to do so.
6. Force majeure. This clause looks to whether the contract, or its provisions separately, can withstand an outside force that materially affects the contract. FM may be a new law, an Act of God (tornado, flood, etc), terrorism, etc
7. Assignment. This means being able to pass along your interest in the contract to another party. This would be Joe P finding a pharmacist to fulfill the last two years of his contract. The new pharmacist would have to 1) agree to all the terms that Joe agreed to, and 2) probably would have to have the OK to step in from the other parties. Quite often, assignment of interest is forbidden in a contract, but not always. When it is, assignees need to look as hard at the contract as the original party, as they assume the liabilities as well as the provisions.
8. Insurance. If not mentioned in the Recitals, there usually will be an Insurance clause. This can cover not only malpractice, but also an Act of God or other type of economic loss. For example, an indie pharmacy generally has a life insurance policy on the owner-pharmacist in the event of unexpected death. The proceeds from the policy may pay the bills while a new pharmacist is found, pay the pharmacist, or settle debts while closing the pharmacy.
9. Disputes between the parties. This provision will detail the steps an aggrieved party must follow in order to seek legal redress for alleged harm to that party. These may include mediation or arbitration before being able to enter the court system. These steps can, in some cases, make it extremely hard for a party to seek to set things right. This provision is an excellent reason why a pharmacist should have an attorney look over every contract, and the lawyer should give a little extra attention to this clause.
10. Governing law. This provision will name the state whose law rules in any legal dispute between the parties. Just because you are in Kentucky, that state’s law does not necessarily govern a legal issue; contracts can state that another jurisdiction’s law will be applied. Quite often, this is New Jersey, as that state has corporate-friendly law.
11. Invalidity of a provision. This one simply says that if, for any reason, a provision of the contract is found to be invalid, the contract continues without it, if it can.
12. Compliance with laws. This is usually in the Recitals, too. The provision simply says that the parties will obey all applicable laws, and when law and policy conflict, the law wins.

OK, those are the basics of a contract. Keep in mind that this is a general review of what a contract is and what makes it up—do NOT treat this blog entry as black letter law.

Though it is a piece (or several pieces) of paper, the contract is as important as the car or vehicle you buy. It would be worth your time (and money) to have an attorney review it with you and discuss the various provisions in the document.

 

*This required element is under serious attack these days, with third party insurance companies making contracts that pay cost LESS a determined percentage. A loss on certain products is expected to be overcome by sales of other cheaper or generic medications. However, shrinking reimbursement is making this harder. Whether this provides a basis for vitiating a contract remains to be seen, but we can expect lawsuits soon as pharmacies, especially indies, fight to hang on.

War Story II

When lawyers tell each other about their interesting cases, they are called “war stories.”

Pharmacists often ask “What is you weirdest case so far?” “Weirdest” is often replaced with “most ridiculous” or “funniest.” Anyway, you get the idea. As for ridiculous, my case files are full of matters I consider ridiculous because they I think they never should have been brought about or pursued.
But here is one from my early years as an attorney.* The pharmacist involved gave me permission to write about this even back then, the late 1990s, but I have made a few small changes to the story to preserve her anonymity. This did not occur in Kentucky, my base state.
Jill Pharmacist graduated pharmacy school and moved back home to her small town. She realized from developments in her community that it was growing and would grow substantially over the years. Too small for a pharmacy when she left for college six years before, the town was now large enough.
So Jill opened Jill’s Pharmacy. The only thing Jill underestimated was her potential. Business went from zero to sixty in nothing flat. As the years went by, it only improved. Jill moved to a larger building and created a large front end area, filling it with items the community needed and keeping the prices competitive with the big box stores miles away in a different town. She had to hire a manager to help run the place.
She seldom hired relief, one big exception being when she married Jack and they took a brief honeymoon. Their idea was to make as much money as possible with as little outlay as possible (ie, relief) before other pharmacists saw the town’s potential and brought competition directly to Jill’s Pharmacy.
Because of the long days, Jill often came home worn out, too tired to do much of anything. So, sometimes on a Wednesday afternoon, when the town’s two doctors left the office at noon, Jack would go to the pharmacy, which was pretty dead in the prescription area. They would go to a small room in the back, lock the door and…well, you know.
As luck would have it for my new law practice, the following took place: 1) Jill and Jack forgot to lock the door, 2) the manager had planned a tour of the store for school children that afternoon, 3) the manager forgot to tell Jill, and 4) the manager threw open the unlocked door, resulting in young children seeing Jack and Jill in the throes of passion.
A few weeks later I first met Jill.
There were three legal issues with the letter she got from the state board of pharmacy. The first was that the letter indicated charges against not only her but also Jack. While the law in most states will permit boards to go after non-pharmacy personnel in certain circumstances, in most instances non-pharmacy people must be referred to the state attorney general for prosecution. I argued that the board had no jurisdiction over Jack. After some back and forth, Jack was dropped from the case.
The second issue was who filed a complaint with the board. The complainant was not a child or a parent of a child who witnessed Jill and Jack, but a neighbor of one of the parents who was told the story by the mother. I knew this was a loser—state boards allow complaints from any source. But I had won the first round and needed to lose one so the board’s attorney and I were even. I had learned early on that winning was important but making sure the opposing party saved face was just as important. I raised the issue, got shot down, and then had an opponent more ready to deal when it came to the third issue.
Jill’s letter from the board stated that the board was considering charging her with moral turpitude. This is a legal concept defined as “an act or behavior that gravely violates the sentiment or accepted” standards of society. Put another, though similar, way, moral turpitude is “conduct…contrary to community standards of honesty, good morals or justice.”
I sent the board a written argument that stated that what Jack and Jill had been doing was an act that society and community condoned in a married couple. I pointed out that there was no intent to have that act viewed by anyone, much less children. I included affidavits from employees who swore that Jill had never failed to lock the door in the past and that the manager had failed to alert her to the children touring the store that afternoon.
The board attorney and I spoke over the phone again. Intent could be inferred by the failure to lock the door and the failure to communicate was analogous, he said, to ignorance of the law. No excuse. At the same time, I realized that there was a decided lack of enthusiasm to pursue this matter. The conversation ended with nothing resolved; I was invited to the board office to discuss this with the attorney and executive director.
So I made the trip. At the board office, I sat down with the ED and the board attorney. The ED and I looked at each other without speaking. After a few minutes of this, the board attorney softly spoke, “When I think about this…”
The ED threw his hands in the air and burst out laughing. The board attorney looked shocked. But a second later, thinking about the ridiculousness of this, I joined the ED. We were both laughing so hard we had tears in our eyes. This went on for quite a while.
Finally, we laughed ourselves out and managed to get down to business. The board, the ED said, had little to no interest in pursuing this. It was an accident. Further, the board did not want the media hearing of the incident, fearing the news would take a sex story and make it a bit on national news and an article in all the popular pharmacy journals.
I suggested dropping the case. This did not go over either, as there had been a formal complaint. Ideas were tossed back and forth for several minutes, to no avail.
Both the board attorney and I claim that we came up with the solution. I still say it was me, but whoever it was, we settled the matter. In court, when a minor crime has been alleged, but there are exigent circumstances, the matter may be “continued.” With a continuance like this, the prosecution of the crime is halted and time is allowed to pass. If the alleged violator does not repeat the criminal activity over a period of time, the charges are dropped. The three of us agreed to continue the matter. A letter was sent to the complainant stating what had been done—she never responded. I informed Jill, who told me Jack would not be coming to the pharmacy for any reason for the foreseeable future, much less the reason he had been there for on that fateful afternoon.
Jill’s Pharmacy continued (and continues) to thrive. A few customers who heard of the incident transferred out but the growing business more than made up for the losses. The incident was an open secret in the town, but the local newspaper was like the board—it was unsure of how to report the story, so it did not.

*My reputation was hardly well known at this time; I had barely been out of law school for a couple of years. An interesting sidelight to this story is how I got the case. I was practicing general law at the time, still trying to get my name out in the world of pharmacy. I had a plumber for a client. We were suing (national department store chain). It was open and shut for my client, so my talks with the corporate attorney were mostly friendly. Shortly after we resolved the matter, he was having dinner with his sister. Sister came from a small town in another state; the town had a pharmacy named Jill’s Pharmacy and there had been an embarrassing incident there. Sister knew that Jill was looking for a lawyer with experience in pharmacy law. My opposing counsel remembered me and provided sister, who provided Jill, with my info.

 

When A Patient Is Harmed/Killed

We go to pharmacy school with the intention of joining a profession that will enhance the quality and quantity of life for the people we will be caring for. Being human, however, we will make mistakes. And when we make a mistake, someone suffers.
A pharmacist, statistics tell us, kills a patient every six to seven years we are in practice. Injuries of some severity are a little more common. And the type of practice does not seem to matter a lot. For the most part, we are unaware of what we have done because the patient’s health was otherwise poor, the patient engaged in medication abuse or misuse, the patient or family chooses not to pursue the matter, no one recognized the error or mistook its severity, etc. Pharmacists should not assume they are beating the odds just because they have not heard of incidents.
But what about when you know? What does a pharmacist do when she learns that she made an error and a patient has been harmed or died as a result? You have certain legal duties.
Though some will try this, NEVER try to hide a mistake. The old saying goes: “The truth will out” and it almost always does. Attempting to hide it or lying about the details will destroy—absolutely and fully– your career when the truth comes out.
Pharmacists think the first thing they should do is report this knowledge to their malpractice insurance carrier. This does no harm, but most carriers really only want to know after a lawsuit has been filed. However, death or substantial harm should be communicated as soon as you hear of it. Check your policy for reporting requirements—be aware of your reporting responsibilities.
If you do not have malpractice insurance, too late. You cannot quickly purchase a policy and be covered—the carrier will remind you that your policy went into effect after the incident/error occurred. Do call a lawyer immediately if you have no coverage, and find one with some experience in pharmacy law or malpractice litigation. As I have written time and time again, get your own malpractice insurance.
What if your malpractice insurance carrier is through your employer? Two issues here. First, your employer has the reporting responsibility. But this does not relieve you of making sure your employer is aware of the error; make a full report of the incident as soon as you know of it.
Second, something I have dealt with as a lawyer several times, pharmacists are often terminated after devastating errors, where a patient is killed or suffers harm that will be life-long. Malpractice carriers will then often try to escape covering that pharmacist by saying she is no longer employed at the covered entity. This is false; she is covered because she was an employee at the time of the error.
With reporting to the malpractice company done, the next question is: do you report the error to the state Board of Pharmacy? Many states have reporting requirements. Read over your state law or contact Pharmacy Law Source to see what your state requires. (You may not want to contact the Board to ask about this as this will put you on their radar.) One issue here is that some state Boards take the information that you self-reported and then use it to punish you. The idea of being punished after making an error—and having to learn to live with it—is not a desirable one for pharmacists. Keep in mind, though, that not reporting and getting caught later could result in substantially more severe sanctions. (The oft-discussed argument that being punished for required self-reporting is a violation of the pharmacist’s Fifth Amendment right against self-incrimination is the subject for another time and blog.)
Next, do you self-report to your state’s version of Pharmacists Recovery Network ({RN)? One of the most—if not the most—important issues after a pharmacist has made a devastating error is learning to live with what has occurred. How do you continue to practice? How do you go to work after killing a patient? How do you live with yourself?
The pharmacist must realize that she is human, just as human as any parent who forgets to pick up a child after school, an accountant who inadvertently transposes numbers on a spreadsheet, a mechanic who forgets to attach an important piece. With our errors, though, someone suffers. If we do indeed kill a patient every 6-7 years, how many other lives have we enhanced, if not saved entirely? Even this justifiable rationalization is not enough for many. The pharmacist should seek whatever help is needed to live with what has happened and to return to work.
The standard for reporting to a PRN would be whether the pharmacist is, after the mistake, incapable of properly performing her professional duties. If so, get help. Your state’s PRN should be able to guide you to the proper entity to help you. Keep in mind that the PRN representative may seek to have your license to practice suspended until the rep is assured you are ready to resume your professional duties. And remember that all other pharmacy personnel are also required to report you if you try to work and show yourself incapable of meeting your duties. If you need time out of pharmacy, take it.
Mistakes and errors are a sad but real part of pharmacy. Studies have proven that the best of us and the best types of workflow will not prevent them, much less reduce them significantly. Pharmacists have legal duties when these errors occur and should be prepared to meet them. Finally, the pharmacist should do whatever is needed to be able to continue her career.

The Moral Dilemma

Several years ago, a hospital pharmacist came out of the IV admixture room to consult with the other pharmacist on duty.  They both looked at a paper order.  On the left side was the physician order, “1500 mg morphine sulfate in 50 cc normal saline.”  On the Progress Note on the right side of the sheet it said, “Have discussed with family.  Will ease patient out.”

A patient brings in a prescription for an abortifacent drug.

You have one dose of a special medication and both your patients on it need it today.  One is a productive member of society and the other is on welfare.  Or one is a man and the other is a woman.  Or one is an adult and the other is a child.

A man comes into a pharmacy.  His drug abuse is well known, as the multiple needle marks on his arm testify.  He wants to buy insulin syringes and needles; his profile shows no diagnosis or other medications that indicate the need for such a purchase.

What are you going to do in these situations?  Fill the fatal cocktail?  Who gets the medication?  Dispense an abortifacent drug?  Sell or deny the syringes?

This blog has addressed professional judgment and conscience clauses in the past.  And these do have a bearing on the above situations.  However, the major part of the decision-making in these cases is not going to fall on these, but land right in the lap of morals and ethics.

And these situations are coming, if they have not already arrived, at a pharmacy near you.

Moral and ethical issues are becoming a larger part of practice.  And as the profession of pharmacy continues to expand and evolve, the numbers of these will increase.  New issues emanating from morals and ethics that we cannot imagine now will join those we are currently familiar with.

Morals and ethics are developed over time by the influences we have in our environment.  Parents, teachers, friends, spiritual leaders, all act and talk  in ways that help us decide what morals we embrace, what ethics we follow.  They may evolve or change over time as these influences wax and wane, as old influences depart and new ones enter our environment.  As we enter adulthood, most of us have a core set of values.

What is a moral issue? It is a decision to provide or not provide some service to a patient, the decision not having a professional basis but one that arouses intense moral or ethical ( I am including religious when using the words “moral and ethical”) feelings.  “Can I provide this service when it’s strongly offends my personal beliefs?”  When these feelings collide with professional service, the pharmacist is undergoing a moral dilemma.  “How can I provide a fatal cocktail for a patient when doing so offends my belief that all life is sacred and death should be left to God, not man?”

While commentators have addressed this in many print, live, and online forums, the bottom line is that there is no easy answer to the moral dilemma.  Denying the patient is not an appropriate act when the sought after result is the pharmacist’s personal satisfaction.  The patient comes first.  Yet, how does the pharmacist fulfill her professional duty in an appropriate manner when that duty regularly, or rarely, calls upon the pharmacist to compromise or abandon long held beliefs?

Let’s look at the patient seeking clinically assisted end of life (I, for one, do not consider it suicide).  This is legal in five states.  Twenty-two others are considering legislation on the issue, and more will do so in the coming years.  Are you ready to face this?  A well-informed patient making a lucid decision to end horrific pain (and the full expectation that her life will end soon anyway) versus taking part in an affirmative step to ending a life.  I recognize that for some, this is an easy decision, but recent polls show that it is a moral dilemma for approximately half the pharmacists in practice today.

The way end of life laws are written, pharmacists can rest assured the patient is making an informed decision.  Hence, there is no legal issue.  As well, most states provide a shield against liability if anything goes awry during the administration of the fatal drugs. (Most end of life laws also have opt-out provisions for health care professionals who do not want to participate, but this blog is for those who do seek to resolve dilemmas)  This leaves the issue of participation solely in the moral arena.

How do pharmacists–and others–resolve a moral dilemma?  Understanding that the following will not fully remove doubts and concerns, I suggest this as criteria:
1.  Seek to view the situation as objectively as possible, outside the scope of morals
2.  Make your priority standard “the best interest of the patient”
3.  Review the latest literature on this issue for any concepts/thoughts that may ease the dilemma
4.  Get the opinions/thoughts of peers on both sides of the dilemma

Keep in mind that following your morals over a patient’s wishes/decision may have circumstances.  I have seen more than one pharmacist lose a job, be sued, and/or be punished by a Board of Pharmacy for deciding a patient’s therapy based on the pharmacist’s ethics. I regularly encounter pharmacists who defiantly announce they will not surrender their morals and ethics to the profession or patients.  Remember the pharmacists who did this in the past ended up in court and lost.  Holding on to morals produces self-worth and satisfaction, but does not pay the mortgage, car, the kids’ braces, etc.   The battle between professional service and personal  beliefs needs to be resolved, to the best of your ability, before the moral dilemma appears.  Doing so will not provide you with a 100% solution; it may help prepare you for the lack of satisfaction if you provide the service or the repercussions if you do not.

I have heard it said: “If you cannot provide the service, you do not belong in pharmacy.”  I do not agree.  Pharmacists are compassionate and caring people.  We did not get this way by a lack of morals, but with a set of deeply ingrained set of strong beliefs.  Thus, however we may feel, at some point we are ALL going to face a moral dilemma.

Thus, the question becomes: how will we respond?

FORGERIES, ALTERED RXS, ETC

I took my first look at the prescription and the red alert siren from Star Trek started blaring inside my head. Not the handwriting for that doc, not instructions that were anywhere near normal for that opioid, and the patient—sweating profusely despite the cool air– was standing there watching me intently.

“I need to clarify the prescription with the doctor,” I told him.

“Wh-what’s wrong?”
“Just a problem a quick call will resolve,” I reassured him.

(Never, never tell someone what is wrong with a forged prescription. This just educates the person on how to do better next time.)

As soon as I had the doctor’s office on the line, he turned and ran out of the store.

What do you do when faced with a forged prescription, or a prescription that has been altered, or a prescription that is unlawfully possessed?

(A forged prescription is one that has been called in/created/written on a stolen pad by a non-prescriber. For example, this recent spate of phoned-in prometh with codeine prescriptions. An altered prescription is a legitimate prescription that has been changed in some manner to obtain the presenter with more pills, stronger pills, more refills than were intended by the legitimate prescriber. For example, I once had an Rx for Fiorinal w/ Codeine #12—the patient turned the 1 to a 4 and marked the Rx for 3 refills—the prescriber had made no notation at all on the refill line. An unlawfully possessed prescription is usually a legitimate prescription being presented by someone who should not have had possession. An unlawfully possessed Rx may be a legit Rx for pain that was stolen from the patient.)

Initially, how sure are you that the Rx is forged or altered? Most states have created regulations that provide protection against liability for a wrongful accusation if the pharmacist is reasonably sure that the Rx is not wholly legitimate. “Reasonably sure” is defined as “more likely than not.” So, if you are 50.1% sure that the Rx is forged, you may act without fear of liability.

For some pharmacists, the quick way out is to state that ”we are out of this” and hand the Rx back. This is an acceptable response sometimes, but not always. What this does is simply hand the problem over to a colleague at the next pharmacy down the street. See next paragraph; but if there is no reasonable danger to the pharmacy staff, do not pass along this problem.

The first thing to do, once a reasonable suspicion is aroused, is assess the safety of the pharmacist and other pharmacy personnel before making a decision to seize and retain the prescription. Is the person presenting the prescription also presenting some sort of attitude, demeanor, or even blatantly threatening the staff? Whether or not to act depends on the probability/possibility that confronting the presenter would create peril. If only an iota of such seems likely, then do what is necessary for the safety of the personnel.

One question that arises occasionally: what if refusing to fill the forged Rx creates a danger to pharmacy staff? The answer is, if this danger is reasonable, fill the Rx. Safety first. Follow up by documenting on the Rx why you filled a forgery and then call the police. Boards of pharmacy are unlikely to punish you for doing this. Of course, this should be a one-time occurrence. However, if you have a stack of forgeries you filled because you thought there was a danger in not filling, expect to have a long talk with the Board about staffing and security, as well as punishment.

Reasonable suspicion? Yes. Safe? Yes. Now is the time to decide to seize and retain the prescription or just hand it back to the “patient.” Most states still make this the pharmacist’s decision. So up to this point everything is permissible.
But once the decision to seize is made, everything goes from being “permissible” to “shall” or “must.” Different states look at this is varying ways, but they are very similar.

Now that the seizure of the Rx has been accomplished, the pharmacist needs to determine lack of or legitimacy (not where the forgery or alteration is obvious and blatant—however, again, any iota of doubt needs to be confirmed). Legitimacy should be determined in a reasonable amount of time. If during office hours, this should usually be within a couple of hours. After hours, a few hours to find and confirm with the prescriber. If after hours and the prescriber is unavailable, the next day is not unreasonable. A question that arises: if the prescriber cannot be contacted within a reasonable time, can the patient demand the Rx be given back? If there is some doubt as to legitimacy—the forgery is not obvious and blatant, the answer is “Yes, the patient has the right to get his/her Rx returned.”

(Another question that arises regularly: if you return the Rx to the patient, can you write something on the face of the Rx blank? This is tricky. Facts are OK, opinions are not. For example, you refuse to fill a pain Rx because it is 10 days early. It is fine to write the date and “10 days early” on the Rx. But with suspected forgeries, be more careful. If a note from you arouses a suspicion of forgery from another pharmacist where it would not have arisen otherwise, your protection from liability may be lost.)

Once it is determined that the Rx is forged, altered, or unlawfully possessed, most states now require the authorities be alerted. This was voluntary for years, until the late 1990s-early 2000s when many chains told their pharmacists to just turn away forged or altered Rxs. The reason behind this was that the chains were seeing too many pharmacist-hours spent in court or with the police, an economic and staffing problem. Another issue along the same lines was that some prescribers did not want to deal with the hassle of forged or altered Rxs, so they asked pharmacists not to take action. (Many of the docs did dismiss the patient.) Boards reacted to this, and now it is codified in most states that the police must be called. You must act.

When the police are called, they will confiscate the forgery. Check your employer policies to determine if you should make a copy for store/company records.

As the drug abuse epidemic worsens, pharmacists are faced with a plethora of problems and challenges from unscrupulous people seeking to obtain drugs through illegitimate means. One of our roles—after our safety has been established—as gatekeepers to medications is to act appropriately when faced with these issues.

Sexual Harassment

I listened as the young woman described the suggestive comments and the inappropriate touching. While I kept a straight face, inside my head I was aghast: “This still happens in the new millennium?!”
When she was done, I immediately picked up the phone and called the college of pharmacy where she was enrolled. Put through to an assistant dean, I identified myself and the student and then described what the student was having to undergo in her school-endorsed rotation. In short order, much to the college’s credit, the young woman’s story was verified, she was moved to another rotation, and the preceptor had charges filed against him by both local police and the board of pharmacy.
Sexual harassment is alive and getting along. While some studies indicate such harassment is declining, the persons still engaging in this behavior are doing so as outrageously as ever. Demanding sexual favors for promotions or good grades, inappropriate comments, inappropriate touching, etc continue unabated in some areas.
Pharmacy, unfortunately, is one of those areas. While more and more pharmacists are female, technicians are still, by a large majority, also female. One study showed that more than half stated that they had endured sexual harassment in some form during their careers.
Sexual harassment is defined as a form of sex discrimination in the workplace that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment.
There are two general types of sexual harassment: quid pro quo and hostile work environment (HWE).
Quid pro quo was the first recognized and seen in the courts. This is where the person doing the harassing makes a demand and withholds something until sexual favors are granted. A promotion, endorsement, policy or procedure change, evaluation, and/or a good grade can be refused until and unless the harassing person gets what is demanded.
While recognized later, hostile work environment covers a much broader area. HWE does not always include sexual favors—it could be a person working in a pharmacy where the pharmacist makes inappropriate comments about customers (“look at the [breasts] on that girl” or “doesn’t he have a nice [rear end]?”), tells jokes of a sexual nature, or just commonly uses derogatory language of a sexual nature. The comments and language do not even have to be aimed at the person who is offended; just having to be in the environment that is offensive is sufficient to meet the criteria for sexual harassment. More cases are based today on HWE than quid pro quo
Some basics on sexual harassment:
–sexual harassment must emanate from someone higher up in the company to a lower ranked employee. The standard is that a lower ranked employee could be fried by someone higher up for such acts.
–though all early cases were male to female harassment (and this is still the majority of cases), sexual harassment can also exist female to male or same sex.
–depending on the egregious nature of the act, a single act of sexual harassment is actionable
–submitting to the demands of a harassing individual makes prevailing in a legal action much more difficult.
An employee being sexually harassed has certain requirements to meet in order for a lawsuit for sexual harassment to be viable. The employee must report the harassment within a reasonable time after the harassment begins. In one case, a technician lost a sexual harassment case for waiting six months before reporting. The court allowed as how fear of losing her job was a deterrent to reporting for a time, six months was too long. If you stay in the environment without complaint for a significant length of time, the court held, you have indicted your acceptance of the environment.
The employee must report the harassment to someone higher up in the company than the harassing individual. The exception to this is when the harassment comes from the highest person in the company. In such a case, go to HR if there is such in the company. Where there is no such department or person, see a lawyer.
One problem is proving the harassment. If others in the work environment do not support the claimant, it becomes a he-said, she-said, and a long time valued employee may be protected against unsubstantiated claims. A person claiming harassment should not hesitate long to complain, but long enough to gather sufficient evidence of sexual harassment.
Employers too have certain duties when they receive a sexual harassment claim. An investigation must be made by the company. The investigation must begin within a reasonable time—delay increases the employer’s liability. Also, the employer needs to remove the employee making the claim from the hostile work environment (this can be accomplished by removing the harassing individual instead of the claimant). However, the employee can be left in the hostile environment for a short and reasonable time while the investigation is ongoing. This is dangerous for employers; if the harassment continues, it is difficult to prove the time period was reasonable. Finally, employees may not be retaliated against for making such a claim, so long as the claim was reasonable. False claims are actionable by both the employer and the person accused.
Employers often pre-emptively address this issue in their employee orientation and/or employee handbook. There may be policies on dating and behavior by employees within the company. Be aware and follow them.
What about sexual harassment from customers/patients? First, this is true harassment. Second, employers are just as required to take action against these people as they are within the company. The general concensus among employers is to warn the customer upon his first harassing act (unless it is outrageous in nature) and then to ban the customer from the location if a second occurrence follows. The affected employee should have input into these decisions. Failure to act against customers engaging in sexual harassment of employees is as actionable as if the harassment came from another employee.
Sexual harassment still exists. Pharmacy employees should stand against it and take whatever steps are necessary when they see it.

Duty to the Employer

“When I started working decades ago for a chain, the amount of tech help you got was based on the number of prescriptions you filled.

Then the chain added patient calls, and doctor calls.  And the amount of tech help you got was still only based on the number of prescriptions you filled.

And then the chain added immunizations.   And the amount of tech help you got was still only based on the number of prescriptions you filled

And then the chain added MTM.  And the amount of tech help you got was still only based on the number of prescriptions you filled

And then the chain added  Point of Care.  And the amount of tech help you got was still only based on the number of prescriptions you filled

And then the chain changed the workflow so that filling a prescription now takes almost twice as long to fill.  And now we have to do initial verification of prescriptions for other stores.  And the amount of tech help you got was still only based on the number of prescriptions you filled

And then the chain cut my tech help.”

–Anonymous pharmacist

The relationship between pharmacist employee and employer—usually corporate—is perhaps at its lowest point since these entities joined years and years ago.  Pharmacists froo a long time had the upper hand in this relationship due to the chronic dearth of professionals.  With the current plethora of colleges of pharmacy and numerous graduates, the pharmacist shortage ended and employers found themselves with more than enough applicants to fill openings.  With this shift in circumstances, employers have exercised their ability to now demand from those who use to do the demanding.  And this has led to a sharp decline in the employer-employee dynamic.

While the paradigm has shifted, pharmacists must keep in mind that they still have duties of loyalty to their employers.  Failing to meet these may result in deiscipline, termination, and, in some cases, liability.

WHILE EMPLOYED

During a time of employment the pharmacist should:

–follow the policies and procedures outlined by the employer.  Exceptions to these are when such are in conflict with applicable law and/or the proper exercise of professional judgment.  For example, if it is the pharmacy policy to fill CS Rxs two days early, the pharmacist should follow this policy except when the Rx states not to be filled until the day due or when the pharmacist’s professional judgment reasonably determines that filling this early is not in the best interests of the patient.

–seek to maintain the business, build the business, and/or minimize business loss where such loss is unavoidable

–do not disparage the business either while on or off duty in any public forum.  If you wish to gripe about your employer on social media, 1) do not mention your employer by name and 2) remove your employer name from your social media profile beforehand.  Keep in mind that while truth is a defense against defamation, even spreading the truth with the sole intent of causing harm may lead to liability.

–avoid actions that could harm the employer, except where these actions are required by law and/or are in the best interests of the patient.  Do not make derogatory remarks about prescribers, keep your political opinions to yourself, do not disparage the products you are selling, etc, etc

Failing to abide by these precepts may lead to discipline and/or termination.  Courts have upheld the right to terminate employees who violate internal policies more times than you would care to count.  And while many employment laws were written to protect the employee, employment law overall favors the employer.

WHEN THE EMPLOYEE IS PLANNING TO LEAVE

Usually when a pharmacist is planning to leave a job, it is to take on other employment.  The mere mention of leaving to go to another job is usually forbidden by corporate policy—such conversation may indicate to a patient that the pharmacist is unhappy with the current employer.

When planning to leave, the pharmacist must keep in mind that he has a fiduciary duty to the current employer; this is a duty of loyalty to guard and care for the current employer and its business.  As above, until after leaving the job, the pharmacist should continue to follow policies and procedures abd seek to maintain the business.  Especially if the new job could directly or indirectly come into competition with the current employer, the move should not be mentioned.  Any action by the pharmacist that could be interpreted as seeking to steal business for the new job location is actionable by the current employer and punishable by the Board of Pharmacy.

AFTER EMPLOYMENT HAS ENDED

A duty to the employer does not automatically terminate upon an employee leaving the company.  Causing harm to the former employer through the use of information gained during the time worked, again, may be actionable.  Pharmacists should maintain an air of professionalism toward a former employer.

If there was an employment contract, it needs to be reviewed carefully.  A non-compete clause must be followed exactly as to time period and geographical area.  Certainly, these criteria can be ignored if the new job will in no manner interfere directly or indirectly with the former employer’s business.  For example, a pharmacist formerly employed in retail could immediately upon departure take a job in a home health infusion pharmacy.

Even if the employer engaged in questionable or outright illegal tactics to get rid of you, tread carefully in your response to such termination.  My telephone and email are full of communications from pharmacists employers are trying to rid themselves of—usually the older higher paid pharmacists.  But get a lawyer and seek legal redress in an appropriate manner.   Violating the fiduciary duty that exists even after termination or publicly dissing your former employer will hurt your case and even open you up to action by the employer.

Despite how an employer may treat a pharmacist, and the manner in which this occurs is certainly changing in the current environment, the pharmacist must be careful in responding.  There is a level of loyalty that is demanded and deserved.  Employers must be respected, at least to the degree that professionalism is respected in return.