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Cotovsky v. Dep't of Registration & Ed.

OPINION FILED OCTOBER 14, 1982.

IRVING COTOVSKY, ET AL., PLAINTIFFS-APPELLEES,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 6, 1982.

The Department of Registration and Education appeals an order of the trial court setting aside the Department's decision to revoke the pharmacy practice licenses held by Irving Cotovsky, Joseph Schreier and Edward Jung. The Department presents the following issues for review: (1) whether the trial court can set aside the decision of an administrative agency based on a factual argument which was never raised before the agency; (2) whether the finding that Joseph Schreier and Edward Jung dispensed excessive quantities of controlled substances is contrary to the manifest weight of the evidence; and (3) whether it is unconscionably harsh, arbitrary and capricious to revoke the license of a pharmacist found to have dispensed excessive quantities of controlled substances.

We affirm.

In 1976, the Department of Registration and Education (Department) filed a complaint against Irving Cotovsky, Joseph Schreier, Edward Jung, Irving's Pharmacy and Irv's No. 2 Pharmacy. Cotovsky owned and operated two pharmacies in Chicago, Illinois. Irving's Pharmacy (Irving's) located at 1346 West Irving Park Road, and Irv's No. 2 Pharmacy (Irv's #2) at 1601 West Montrose Avenue. Cotovsky was a registered pharmacist, and both of his pharmacies held certificates of registration. Jung worked at Irving's, and Schreier worked at Irv's #2. Both Jung and Schreier were registered pharmacists. The Department alleged that between January 1 and June 1, 1976, Cotovsky or someone under his direction and control dispensed from the pharmacies 7,112 prescriptions issued by Dr. Gerald McCabe for controlled substances. The prescriptions were issued at intervals of three, four and seven days for many of the same individuals for whom similar prescriptions were issued previously.

The Department charged that the large amount of controlled substances ordered and dispensed indicated that respondents in the trial court, appellees in the instant case, were jointly and separately guilty of gross immorality; "did not exercise good faith and dispensed * * * Controlled Substances for no legitimate medical purpose" but rather to maintain the drug addiction of the recipients of the prescriptions and/or to illicitly divert the controlled substances. The Department alleged that appellees' acts were grounds for revocation or suspension of their certificates of registration under section 7.6 of the Pharmacy Practice Act of the State of Illinois (Ill. Rev. Stat. 1975, ch. 91, par. 55.7-6) and under rules VII and IX(5) of rules and regulations promulgated for the administration of the Act. The Department asked that appellees' certificates be suspended or revoked.

On July 29, 1976, after an ex parte hearing, the director of the Department suspended the controlled substances licenses of the pharmacies. Section 305(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1305(b)) provides for suspension pending a formal hearing. On August 10, 1976, the hearing began. The record established that 7,112 prescriptions written by Dr. Gerald McCabe were filled at the two pharmacies from January 1 to June 1, 1976. From these prescriptions, the Department selected prescriptions filled for 10 individuals which were marked as Department's exhibits 8A to 8J. All of the expert testimony offered by the Department and the pharmacies was directed toward the prescriptions written for those 10 individuals.

The Department called as its first witness Lawrence B. Slotnik, its drug compliance coordinator. Slotnik examined the prescriptions and stated that in his opinion they were excessive and not filled in good faith.

Marvin Graber, a pharmacist, was qualified as an expert witness. When asked what duty is imposed upon a pharmacist to fill a prescription for a controlled substance, Graber stated that the pharmacist should determine the validity of the prescription. According to Graber, a pharmacist could have a duty to refuse to fill a prescription for a controlled substance. Graber reviewed the prescriptions and gave as his opinion that the dosages were excessive.

Sherwood Thomas, a practicing pharmacist, also testified that the prescriptions were excessive. The Department then rested and the defense put on their case.

Norman Farnsworth, a professor of pharmacognosy and head of the Department of Pharmacognosy and Pharmacology at the College of Pharmacy at the University of Illinois, was qualified as an expert witness. He examined the prescriptions and testified that the dosages were not excessive. Other expert witnesses who also testified that the prescriptions were not excessive were Philippe Benoit, a professor of pharmacology at the University of Illinois Medical Center, Leonard C. Arnold, a physician and attorney, and Ralph William Morris, a professor of pharmacology at the University of Illinois, College of Medicine.

Several individuals who filled their prescriptions at Cotovsky's pharmacies testified that they had pathological conditions for which controlled substances were prescribed. These individuals were not those whose prescriptions were examined by the expert witnesses. William Stevens, an accountant, testified that McCabe prescribed morphine sulphate for pain caused by metal fragments in his spine. His wife, also a patient at McCabe's, took morphine sulphate to relieve pain caused by bone infection. Kenneth LeVey, a lawyer, stated that he suffered from rapid heartbeat for which McCabe prescribed quaalude. John Tornabene suffered from emphysema and lung tumors for which McCabe prescribed morphine sulphate. Vito Cancialosi took morphine sulphate to relieve pain caused by automobile accident injuries. Patricia Trapp was paralyzed in her left arm. McCabe prescribed Dilaudid. Some of the patients described the difficulties they had in getting their prescriptions filled.

Following the conclusion of the hearing and upon recommendation of the hearing officer, the director of the Department ordered the revocation of the licenses of the pharmacies to dispense controlled substances. The pharmacies filed suit for administrative review and the trial court upheld the Department's decision. We affirmed in Irving's Pharmacy v. Department of Registration & Education (1979), 75 Ill. App.3d 652, 658, 394 N.E.2d 627, 632, holding that the evidence adduced at the administrative hearing supported the decision of the Department and that its findings were based on substantial evidence in the record and were not against the manifest weight of the evidence.

On November 1, 1976, proceedings against appellees began before the State Board of Pharmacy (Board). It accepted as evidence the transcript of the proceedings before the hearing officer. At a hearing on August 1, 1977, the chairman explained that "the Board would like to have an opportunity to ask questions of additional witnesses in addition to the witnesses that did testify in the previous hearing." The Board wanted testimony from pharmacologists as well as a physician to represent the Board because there was an imbalance in the expertise of the ...


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