{ "id": 8918248, "name": "CVS PHARMACY, INC. d/b/a CVS PHARMACY, Petitioner v. NORTH CAROLINA BOARD OF PHARMACY, Respondent", "name_abbreviation": "CVS Pharmacy, Inc. v. North Carolina Board of Pharmacy", "decision_date": "2004-02-03", "docket_number": "No. COA02-1643", "first_page": "495", "last_page": "503", "citations": [ { "type": "official", "cite": "162 N.C. App. 495" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "225 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 747", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557217 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0747-01" ] }, { "cite": "241 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "294 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570860 ], "year": 1978, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0060-01" ] }, { "cite": "561 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219987, 220132, 219965, 220110 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0292-04", "/nc/355/0292-02", "/nc/355/0292-03", "/nc/355/0292-01" ] }, { "cite": "555 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "634" }, { "page": "634" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380047 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "454" }, { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0446-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-85.38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(9)" } ], "opinion_index": 0 }, { "cite": "436 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531467, 2527572, 2532793, 2530234, 2529886 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0174-04", "/nc/335/0174-05", "/nc/335/0174-03", "/nc/335/0174-01", "/nc/335/0174-02" ] }, { "cite": "431 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521035 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0186-01" ] }, { "cite": "420 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527698 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0462-01" ] }, { "cite": "373 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564495, 2561577, 2560493, 2565935 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0370-04", "/nc/323/0370-03", "/nc/323/0370-01", "/nc/323/0370-02" ] }, { "cite": "368 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "404" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524358 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0346-01" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] } ], "analysis": { "cardinality": 717, "char_count": 18617, "ocr_confidence": 0.771, "pagerank": { "raw": 6.880246751622768e-08, "percentile": 0.41860316952841653 }, "sha256": "7a1bd374084035d724b513e0e6f78154261bcfbaa3e54c6e0453aa68355fe057", "simhash": "1:d9f9f7f817072416", "word_count": 3006 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HUDSON concur." ], "parties": [ "CVS PHARMACY, INC. d/b/a CVS PHARMACY, Petitioner v. NORTH CAROLINA BOARD OF PHARMACY, Respondent" ], "opinions": [ { "text": "ELMORE, Judge.\nCVS Pharmacy, Inc. (petitioner) brought a petition for judicial review in the Wake County Superior Court of three final decisions of the North Carolina Board of Pharmacy (Board of Pharmacy). The final decisions concerned three separate instances of pharmacists who were employed by the petitioner dispensing the wrong medications. Two of the pharmacists involved had been practicing for ten years or more with no prior complaints. Each of the three pharmacists filled more than 150 prescriptions during the respective shifts in which the errors were made.\nThe first decision of the Board involved Permit 6748, held by the CVS in Raeford, North Carolina. At the Raeford CVS, on 15 April 1998, Jacqueline Buller tendered a prescription for Cortisporin Opthalmic Solution and was erroneously dispensed Neo/Polymyxin Ear Solution the next day. The pharmacist on duty that day (Walter Coley) worked from 9:00 a.m. to 9:00 p.m. and filled 288 prescriptions. He had been licensed for twenty-five to thirty years and never previously been the subject of complaints or disciplinary action. The Board ordered the following: 1) a reprimand of CVS; 2) that CVS \u201cshall not allow pharmacists to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety;\u201d 3) that CVS submit a written statement to the Board signed by the current pharmacists that they have read and understand the patient counseling rule.\nThe second decision involved Permit 6799, held by the CVS in Wake Forest, North Carolina. At that CVS, on 8 November 1999, Linda Barlow tendered a prescription for methotrexate 2.5mg to Pharmacist Randy Ball and was erroneously dispensed amitriptyline 25mg. On 18 October 1999, Pharmacist Ball erroneously dispensed 48 units of prednisone 5mg and 48 units of prednisone lOmg in a lOmg box on a prescription for prednisone 5mg. Pharmacist Ball was the only pharmacist on duty on 18 October, when he filled 347 prescriptions during a twelve hour shift, and was one of two pharmacists on duty on 8 November, when 328 prescriptions were filled (he filled approximately 162). He had been licensed for ten to fifteen years with no prior complaints or disciplinary action. The Board ordered: 1) that CVS be cautioned regarding its \u201cfailure to comply with the Board\u2019s patient counseling rule;\u201d 2) that CVS\u2019s permit be suspended for one day, which order was suspended for three years on condition that:\na) . . . [CVS] shall not allow pharmacists to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety.\nb) [CVS] shall submit to the Board... a written statement signed by the current pharmacists . . . [that they have read and understand the] . . . patient counseling rule[.] . . .\nc) [CVS] shall comply with the laws governing practice of pharmacy....\nd) [CVS] shall comply with the regulations of the Board.\nThe third decision involved Permit 6559 in Burlington, North Carolina. On 30 October 1999, Dee Snow tendered a prescription for penicillin vk 250mg and was erroneously dispensed albuterol sulfate 2mg. Pharmacist A. Broughton Sellers, Jr. was on duty on 30 October from 8:00 a.m. to 3:00 p.m., when he dispensed 215 prescriptions. The Board gave CVS a reprimand in that case.\nOn 19 March 2001 the Board of Pharmacy entered final decisions in all three cases, as noted above. CVS filed a petition for judicial review in the superior court on 19 April 2001. The superior court, considering all three cases together, heard arguments in open court, reviewed the entire record, and affirmed the Board of Pharmacy. The petitioner now brings this appeal.\nI.\nWe first determine the proper standard of review. The North Carolina Administrative Procedure Act, N.C. Gen. Stat. \u00a7 150B-1 et seq., governs both superior court and appellate court review of administrative agency decisions. Eury v. N.C. Employment Security Comm., 115 N.C. App. 590, 446 S.E.2d 383 (1994). N.C. Gen. Stat. 150B-51 governs the scope of the superior court\u2019s review of final agency decisions. N.C. Gen. Stat. \u00a7 150B-51(b), as amended effective 1 January 2001, provides:\n(b) Except as provided in subsection (c) of this section, in reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency\u2019s decision, or adopt the administrative law judge\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nN.C. Gen. Stat. \u00a7 150B-51 (2003).\nAccording to the language in 150B-51, the standard of review by the superior court seems to be unchanged in a case like this one, which has not first been heard by an Administrative Law Judge. Our appellate review of the superior court, however, is governed by 150B-52, which provides: \u201cThe scope of review to be applied by the appellate court under this section is the same as for other civil cases.\u201d This language was previously construed by the case of Tay v. Flaherty, 90 N.C. App. 346, 368 S.E.2d 403 (1988):\nWhen an appellate court is reviewing the decision of another court \u2014 as opposed to the decision of an administrative agency\u2014 the scope of review to be applied by the appellate court under G.S. \u00a7 150A-52 is the same as it is for other civil cases. That is, we must determine whether the trial court committed any errors of law.\nTay v. Flaherty, 90 N.C. App. 346, 348, 368 S.E.2d 403, 404, disc. review denied, 323 N.C. 370, 373 S.E.2d 556 (1988).\nThis is one of the first cases of this nature our Court has considered which is governed by the most recent revisions of the Administrative Procedures Act. We note that most of the revisions pertain to those cases which are reviewed by an Administrative Law Judge and are thus not relevant to the case at bar, which was decided by a professional licensing board. We discern no practical difference between the expressed scope of review in 150B-52, i.e., determining errors of law, and the standard of review under the previous version of chapter 150B.\nFor purposes of this appeal, we must first determine whether the superior court acted within its authority as defined by 150B-51(b). The lower court stated in its order:\nThe proper standard of review of an agency decision is determined by the nature of the error asserted in judicial review. For an asserted error of law or procedure, the review of the Court is de novo. ... For an asserted error of fact, the review of the Court is the \u201cwhole record\u201d test, which requires the Court to examine the entirety of the record to determine whether the agency\u2019s decision is supported by substantial evidence (and therefore affirmed) or whether it is arbitrary and capricious (and therefore reversed)_N.C. Gen. Stat. \u00a7 150B-51(b)(5), (6).\nSee Bashford v. N.C. Licensing Bd. for General Contractors, 107 N.C. App. 462, 420 S.E.2d 466 (1992); In re McCollough v. N.C. State Bd. of Dental Examiners, 111 N.C. App. 186, 431 S.E.2d 816, disc. review denied, 335 N.C. 174, 436 S.E.2d 381 (1993).\nThe superior court then made findings that the final decisions of the Board of Pharmacy that CVS had violated N.C. Gen. Stat. \u00a7 90-85.38(a)(9) were\nsupported by competent, material, and substantial evidence, and are not otherwise erroneous ... are not in excess of the statutory authority or jurisdiction of the Board . . . [are not] arbitrary and capricious . . . are not in violation of any constitutional provisions, and were not a product of unlawful procedure . . . are not affected by any other error of law . . . [and] are upheld.\nThe superior court employed the proper standard of review under 150B-51, and made relevant findings of fact which were supported by the record. We therefore affirm the superior court\u2019s judgment, affirming the Board of Pharmacy. We will address the appellant\u2019s assignments of error in turn.\nII.\nThe first assignment of error on appeal pertains to whether the Board of Pharmacy exceeded its authority by attempting to reprimand, discipline, regulate and limit the operations of three pharmacies of CVS. We agree with the superior court that the Board of Pharmacy did not exceed its authority.\nUnder North Carolina law, the Board may discipline the permitee (pharmacy) for the unlawful acts of its employees (the pharmacists) while engaged in the conduct and operation of the pharmacy, although the permitee does not authorize the unlawful acts and did not have actual knowledge of the activities. This is particularly true of a corporate permitee which can act only through its officers, agents, and employees. Sunscript Pharmacy Corp. v. N.C. Bd. of Pharmacy, 147 N.C. App. 446, 454, 555 S.E.2d 629, 634 (2001), disc. review denied, 355 N.C. 292, 561 S.E.2d 506 (2002).\nSection 90-85.2 et seq. of the General Statutes comprises the North Carolina Pharmacy Practice Act. Section 90-85.38 outlines the disciplinary authority of the Board of Pharmacy. That section provides:\n\u00a7 90-85.38. Disciplinary authority[:]\n(a) The Board may, in accordance with Chapter 150B of the General Statutes, issue a letter of reprimand or suspend, restrict, revoke, or refuse to grant or renew a license to practice pharmacy, or require licensees to successfully complete remedial education if the licensee has done any of the following:\n(9) Been negligent in the practice of pharmacy.\n(b) The Board, in accordance with Chapter 150B of the General Statutes, may suspend, revoke, or refuse to grant or renew any permit for the same conduct as stated in subsection (a).\nN.C. Gen. Stat. \u00a7 90-85.38 (2003).\nAlthough the petitioner notes that \u201creprimand\u201d is not listed as a permissible discipline under subsection (b) pertaining to permitees, and was listed in subsection (a) pertaining to licensees, we are not compelled that the omission is significant. In construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results. Comr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978). Since a reversal of the lower court on the basis that the Board of Pharmacy is limited to the statutory list would probably have the result of increasing the petitioner\u2019s punishment, we consider that an untoward result. The Board has the discretion to select a lesser punishment in accord with reason when the permitee has so clearly violated the statute. We therefore affirm the superior court, upholding the Board\u2019s final decision.\nIII.\nNext, the petitioner argues that the Board unlawfully used, in its adjudications, a policy that CVS is presumptively liable for the acts of its pharmacists and other employees. This assignment of error is without merit.\nThe Board has no need to employ such a presumption when, under the decision in Sunscript Pharmacy, the permitee pharmacy is held liable for the actions of the pharmacists it employs as explained above. Sunscript Pharmacy, 147 N.C. App. 446, 454, 555 S.E.2d 629, 634.\nIV.\nThe petitioner next contends that the Board\u2019s final decisions were based upon unlawful procedure. The petitioner argues that two of the procedures were unlawful: the use of a \u201c150 policy\u201d, and that the Board\u2019s failure to make adequate findings of fact to support its conclusions of law have procedurally disadvantaged CVS. We find this assignment of error to also be without merit.\nPetitioner argues that the Board of Pharmacy in its final decision improperly used a policy that when more than 150 prescriptions have been filled by a pharmacist on a given day, it is presumed that the pharmacy should be sanctioned when the pharmacist makes an error. Petitioner bases this argument on the constitutional guarantees of due process and notice. See Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976).\nAs noted above, our decision in the Sunscript Pharmacy case held that a pharmacy is liable for the errors of its pharmacists committed while engaged in the conduct and operation of the pharmacy. Sunscript Pharmacy, 147 N.C. App. at 454, 555 S.E.2d at 634. It is therefore unnecessary for the Board to adopt such a presumption in order to hold the petitioner liable. In fact in its three final decisions, the Board made no finding concerning the \u201c150 policy,\u201d nor did it make any findings concerning the number of prescriptions filled during the days each error was committed. In each case, the Board made concise findings that specific, identified dispensing errors were made by pharmacists employed by the petitioner. Petitioner has not contested those findings on appeal. In the decisions concerning permits numbered 6748 and 6799, the Board made identical conclusions of law that \u201c[i]n accordance with 21 N.C.A.C. 46.1811, [Petitioner] shall not allow pharmacists to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety.\u201d Because the Board did not need a presumption in order to find and conclude the errors and the resulting punishments, there was no due process violation. The findings that a dispensing error was committed were sufficient to warrant the conclusions of liability.\nThe Board also issued a notice of hearing for each case, which notices are included in the record on appeal. Each gives notice of the charges against CVS and gives notice of the date of hearing when petitioner would have an opportunity to appear and be heard. We discern no due process violations on the part of the Board.\nV.\nThe petitioner lastly argues that the Board\u2019s final decisions were arbitrary and capricious. The Board, through its investigation and hearings, factually established the dispensing errors in each case, which are not disputed on appeal. According to our holding in Sunscript Pharmacy, it is not arbitrary and capricious to hold a pharmacy responsible for the errors of its pharmacists who are engaged in the conduct and operation of the pharmacy. Since the petitioner\u2019s argument is centered on the premise that the pharmacy is not liable for its employee\u2019s acts, that argument is meritless as against our decision in Sunscript Pharmacy. We therefore affirm the superior court which affirmed the final decision of the Board of Pharmacy.\nAffirmed.\nJudges TIMMONS-GOODSON and HUDSON concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Strickland, Harris & Hilton, P.A., by Nelson G. Harris for petitioner-appellant.", "Bailey & Dixon, L.L.P., by Carson Carmichael, III and Anna Baird Choi for respondent-appellee." ], "corrections": "", "head_matter": "CVS PHARMACY, INC. d/b/a CVS PHARMACY, Petitioner v. NORTH CAROLINA BOARD OF PHARMACY, Respondent\nNo. COA02-1643\n(Filed 3 February 2004)\n1. Administrative Law\u2014 final agency decision \u2014 standard of review \u2014 whole record test\nThe trial court acted within its authority under N.C.G.S. \u00a7 150B-51(b), properly employed the whole record test, and made relevant findings of fact which were supported by the record when it affirmed respondent Board of Pharmacy\u2019s final decision in three cases where pharmacists employed by petitioner dispensed the wrong medications.\n2. Pharmacists\u2014 pharmacies \u2014 disciplinary authority of Board of Pharmacy\nRespondent Board of Pharmacy did not exceed its authority by attempting to reprimand, regulate, and limit the operations of three pharmacies of CVS pursuant to N.C.G.S. \u00a7 90-85.38 involving three cases where pharmacists employed by petitioner dispensed the wrong medications even though \u201creprimand\u201d is not listed as a permissible discipline under subsection (b) pertaining to permitees and was listed in subsection (a) pertaining to licensees, because: (1) a reversal of the lower court on the basis that the Board of Pharmacy is limited to the statutory list would probably have the result of increasing petitioner\u2019s punishment; and (2) the Board of Pharmacy has the discretion to select a lesser punishment in accord with reason when the permitee has violated the statute.\n3. Pharmacists\u2014 pharmacies \u2014 permitee liable for employees\nRespondent Board of Pharmacy did not unlawfully use in its adjudications a policy that CVS is presumptively liable for the acts of its pharmacists and other employees for three cases where pharmacists employed by petitioner dispensed the wrong medications, because the Board has no need to employ such a presumption when the permitee pharmacy is held liable for the actions of the pharmacists it employs.\n4. Pharmacists; Constitutional Law\u2014 Board of Pharmacy\u2014 due process \u2014 specific identified errors\nRespondent Board of Pharmacy\u2019s final decisions in three cases where pharmacists employed by petitioner dispensed the wrong medications did not violate petitioner\u2019s due process rights based on alleged unlawful procedures, because: (1) the Board made concise findings that specific, identified dispensing errors were made by pharmacists employed by petitioner rather than employing a policy that when more than 150 prescriptions have been filled by a pharmacist on a given day, it is presumed that the pharmacy should be sanctioned when the pharmacist makes an error; (2) the findings that a dispensing error was committed were sufficient to warrant the conclusions of liability; and (3) the Board issued a notice of hearing for each case in order to give petitioner an opportunity to appear and be heard.\n5. Pharmacists\u2014 dispensing wrong medications \u2014 final agency decision \u2014 arbitrary and capricious standard\nRespondent Board of Pharmacy\u2019s final decisions in three cases where pharmacists employed by petitioner dispensed the wrong medications were not arbitrary and capricious, because: (1) the Board, through its investigation and hearings, factually established the dispensing errors in each case; and (2) it is not arbitrary and capricious to hold a pharmacy responsible for the errors of its pharmacists who are engaged in the conduct and operation of the pharmacy.\nAppeal by petitioner from order and judgment entered 13 September 2002 by Judge Ripley E. Rand in Wake County Superior Court affirming the final decisions of the North Carolina Board of Pharmacy entered 19 March 2001. Heard in the Court of Appeals 17 September 2003.\nStrickland, Harris & Hilton, P.A., by Nelson G. Harris for petitioner-appellant.\nBailey & Dixon, L.L.P., by Carson Carmichael, III and Anna Baird Choi for respondent-appellee." }, "file_name": "0495-01", "first_page_order": 523, "last_page_order": 531 }