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Irving's Pharmacy v. Dept. of Regis. & Educ.

OPINION FILED AUGUST 23, 1979.

IRVING'S PHARMACY ET AL., PLAINTIFFS-APPELLANTS,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiffs-appellants, Irving's Pharmacy and Irv's #2 Pharmacy, bring this appeal from an administrative review decision of the circuit court of Cook County sustaining the ruling of defendant-appellee, the Department of Registration and Education (Department), which revoked plaintiffs' licenses to dispense controlled substances. We affirm.

Pursuant to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1305(b)), on July 29, 1976, Ronald E. Stackler, the director of the Department, issued an order suspending plaintiffs' licenses to dispense controlled substances, pending a hearing. The director charged plaintiffs with the failure to exercise good faith in the dispensing of controlled substances. A hearing was to be set within the statutory time period of 14 days. On July 30, 1976, plaintiffs were served with the order, notice, complaint, and petition. On that same day, the director appointed Paul Levenfeld as the hearing officer. On July 31, 1976, plaintiffs received notice of the hearing set for August 10, 1976.

In its complaint, the Department challenged the number of prescriptions filled by the two pharmacies for controlled substances. These prescriptions were issued by Dr. Gerald McCabe. At the hearing, both parties entered into a stipulation regarding the total number of prescriptions concerned. From January 1, 1976, to June 1, 1976, plaintiffs filled approximately 7,208 prescriptions for controlled substances which were written by Dr. McCabe. The hearing officer took judicial notice that plaintiffs also filled a large amount of prescriptions for uncontrolled substances.

The record reveals that from May 14, 1976, to June 1, 1976, Irv's #2 Pharmacy dispensed a total of 675 tablets to one individual. Each prescription was for 75 tablets of one-half grain morphine sulfate, a controlled substance. During the same period, the same pharmacy filled eight separate prescriptions, each for 75 tablets containing 4 milligrams of the controlled substance, Dilaudid, for one individual totaling 670 tablets. During this period, Irv's #2 Pharmacy filled five prescriptions for an individual for 75 milligrams each of the controlled substance, Preludin, totaling 200 tablets. From May 14, 1976, to June 1, 1976, the two pharmacies filled 12 separate prescriptions for 75 tablets of one-half grain morphine sulfate, for the same person, for a total of 900 tablets. At times, two prescriptions for the same or different controlled substances were filled on the same day for the same individual.

At the hearing, plaintiffs and the Department had several witnesses testify. Plaintiffs' expert witnesses included Norman Farnsworth, a professor of pharmacognosy at the University of Illinois Medical Center; Philippe S. Beniot, a professor of pharmacology at the University of Illinois Medical Center, and Dr. Leonard C. Arnold, a physician and attorney. The Department's expert witnesses included Lawrence Slotnik, who practiced pharmacy from 1948 to 1952 and is now the drug compliance coordinator of the Department of Registration and Education, Marvin Graber, who has practiced pharmacy since 1948, and Sherwood Thomas, a practicing pharmacist since 1950. In summary, in the opinion of plaintiffs' expert witnesses, the amounts of controlled substance prescriptions filled by the two pharmacies were not excessive; and in the opinion of the Department's expert witnesses, the amounts of controlled substances dispensed were excessive for the frequency of refills during the indicated time periods. According to plaintiffs' witnesses, several factors should be considered to determine whether a proper dosage of a drug is being dispensed, e.g., age, weight, and sex of the individual. Also to be considered are any tolerance that has been built up for the drug, condition of the individual with respect to his physiology or pathology and metabolic rate, and the effects any one drug may have on the prior or concurrent administration of another drug.

Following the conclusion of the hearing, the hearing officer filed his findings of fact and conclusions of law. He recommended that the Department revoke the licenses of the two pharmacies based on the following findings:

"(1) The number and amounts of drugs as alleged in the complaint had been purchased and dispensed, as alleged in the complaint.

(2) The witnesses who testified on behalf of the Department had testified that the amounts and frequencies of drugs dispensed by the pharmacies as set forth in Department's [Group] Exhibit 8 — A through 8-J were excessive and abnormal.

(3) The testimony of the witnesses submitted by the pharmacies did not refute the testimony of the Department's witnesses. Their testimony that they would have to know the individual involved, examine him, and be acquainted with his past medical history made their testimony, in effect, of little or no value, and could not be accepted in determining the issue of whether the pharmacies had acted properly.

(4) The burden of going forward with evidence to justify the pharmacies' conduct was on the pharmacies and they did not meet that burden. They could have met this burden by introducing the testimony of the individuals for whom the prescriptions had been filled, or by testifying themselves.

(5) The evidence shows that there was a violation of Chapter 56 1/2 Illinois Revised Statutes § 1102(w)."

On December 9, 1976, the director of the Department entered a written order revoking the licenses of the pharmacies to dispense controlled substances. Plaintiffs' petition for rehearing was denied, and they filed suit for administrative review in the circuit court of Cook County. The trial judge found the decision of the Department was supported by the evidence and in accordance with the law.

The issues plaintiffs have asked us to consider are (1) whether the charges and findings of the Department were so vague and unsatisfactory as to deny plaintiffs due process of law; (2) whether the Department failed to hold a hearing within the mandatory time limitations imposed by statute after having suspended plaintiffs' licenses to dispense controlled substances ex parte and without any notice or hearing, due to an ...


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