Jones v. State

• Decision Date: 04 November 2010
• Docket Number: No. 80787-6.,80787-6.
• Citation: 170 Wash.2d 338,242 P.3d 825
• Parties: Michael S. JONES, R.Ph., Petitioner, v. STATE of Washington and its DEPARTMENT OF HEALTH; Washington State Board of Pharmacy; Phyllis Wene and Stan Jeppesen, individually and as investigators for the Washington State Board of Pharmacy; and Donald Williams, individually and as executive director of the Board of Pharmacy, Respondents.
• Court: Washington Supreme Court

242 P.3d 825

170 Wash.2d 338

Michael S. JONES, R.Ph., Petitioner,

v.STATE of Washington and its DEPARTMENT OF HEALTH; Washington State Board of Pharmacy; Phyllis Wene and Stan Jeppesen, individually and as investigators for the Washington State Board of Pharmacy; and Donald Williams, individually and as executive director of the Board of Pharmacy, Respondents.

No. 80787-6.

Supreme Court of Washington, En Banc.

Argued June 23, 2009.

Decided Nov. 4, 2010.

D. Murphy Evans, Brownlie Evans Wolf & Lee LLP, Bellingham, WA, for Petitioner.

Catherine Hendricks, WA Attorney General, John Robert Nicholson, Office of the Attorney General, Seattle, WA, for Respondents.

FAIRHURST, J.

¶ 1 Without giving him notice or an opportunity to be heard, the Washington State Board of Pharmacy (Board) summarily suspended Michael S. Jones' business and professional licenses to practice pharmacy due to unsatisfactory inspection reports. During the subsequent administrative proceeding, Jones agreed to the revocation of his pharmacy location license and a five-year suspension of his professional license. Jones now sues the State of Washington, the Department of Health (DOH), the Board, the Board's executive director, and two pharmacy inspectors, alleging that the suspension was based on an improper investigation and hearing. At issue is whether the Board's inspectors are entitled to qualified immunity from liability under 42 U.S.C. § 1983 for violations of Jones' right to due process. Also at issue is whether the exhaustion doctrinebars Jones' state tort claims because he waived two opportunities for administrative hearings. The Court of Appeals held that Jones' right to due process was not violated and that Jones failed to exhaust his administrative remedies. We reverse.

I. FACTUAL AND PROCEDURAL HISTORY ¹

¶ 2 The Board conducts "periodic inspections to determine compliance with the laws regulating the practice of pharmacy." WAC 246-869-190(1). Board inspectors assign the pharmacy a " '[c]lass A' " classification for an inspection score of 90 to 100; " '[c]onditional' " for 80 to 89; and " '[u]nsatisfactory' " for below 80. WAC 246-869-190(3)(a)-(c).A pharmacy classified as unsatisfactory is "subject to disciplinary action" if the score does not increase to 90 or better within 14 days. WAC 246-869-190(5). A pharmacy's license is subject to summary suspension for an " unsatisfactory" classification if the pharmacy's conditions "represent a clear and present danger to the public health, safety, and welfare." WAC 246-869-190(8).

A. Jones' pharmacy is inspected four times from December 1998 to August 1999, with fluctuating inspection scores

¶ 3 Jones first began practicing pharmacy in Washington in 1980. In 1995, he purchased a Medicine Shoppe pharmacy franchise in Marysville and served as its sole pharmacist. Board inspector Phyllis Wene conducted a routine inspection of Jones' pharmacy on December 17, 1998, and assigned an unsatisfactory score of 79. Nearly seven weeks later, on February 3, 1999, Wene reinspected and assigned a class A score of 94. Jones says the condition of his pharmacy got even better by the summer of 1999.

¶ 4 Despite this improvement in conditions, Wene and Board inspector Stan Jeppesen assigned an extremely low unsatisfactory score of 48 to Jones' pharmacy on July 12, 1999. At this inspection, Jones says he "was subjected to non-stop harassment by Wene and Jeppesen," and he lists many examples: "Jeppesen yelled at me and banged his hands on the pharmacy counter while I tried to select, count, and prepare medications"; "Wene and Jeppesen stood on either side of me and made repeated demands in rapid-fire succession"; and "Jeppesen stood directly behind me-within six inches-and interrupted me while I entered information on the computer system." Pl.'s Clerk's Papers (PCP) at 766. Jones reports a history of bad blood with the Board: In 1994, he confronted a Board inspector and told him to stop harassing his co-worker, and only three weeks after this incident, the Board placed Jones on probation for misfilling a prescription. On August 10, 1999, Wene and Jeppesen reinspected and assigned an unsatisfactory score of 56.

¶ 5 Jones alleges that "the scoring of the deficiencies was conducted in an arbitrary and capricious manner" and testified that "in numerous instances the inspector deducted five points (the maximum per deficiency) for minor discrepancies." PCP at 768. Further, Jones claims there were "numerous errors in each inspection report." Id. For instance, in December 1998, Wene cited Jones for "[v]arious ... records required by state and federal law were either inaccurate, incomplete or not available." Def.'s Clerk's Papers (DCP) at 416.² In February 1999, she again cited Jones for violations relating to "inaccurate, incomplete or missing records required by state or federal law." DCP at 417. In July and August, Jones was cited for violating WAC 246-887-020, which requires a pharmacist who fills prescriptions for controlled substances to comply with federal regulations for inventory control. However, Jones declares that by July, "I did have the required DEA [ (Drug Enforcement Administration) ]order forms and invoices but I kept them in different places." PCP at 767. And in August, he says, "I had matched DEA order forms with invoices" and "I did perform the inventory for Schedule II and Schedule III drugs prior to the second inspection." PCP at 767-68. In a declaration to the Board, Jones admitted some minor record-keeping problems, but the July and August reports do not explain what was different from the prior two inspections.

¶ 6 In December 1998, Wene cited Jones for "[d]ispensing the majority of prescriptions in non child-resistant containers without a written request from either the patient or the prescriber." DCP at 416. In February 1999, Jones might have committed this infraction-the record is not clear-because Wene cited Jones for "inaccurate, incomplete or missing records required by state or federal law." DCP at 417. Jones was definitely cited for the same violation in July andAugust. PCP at 651-52. The inspectors were able to identify only a small percentage of the necessary signatures, and Jeppesen described Jones' signature-tracking system as disorganized. However, Jones declares, "I did have written records of patients' requests for non-child resistant caps." PCP at 767. He further stated, "It was also my understanding that Mrs. Wene approved of my system when I received a 94 on February 3, 1999. That was the same system that was in place in July and August." DCP at 342.

¶ 7 In December 1998, Wene cited Jones for "[f]ailing to obtain chronic conditions on patients of the pharmacy." DCP at 416. In February 1999, again, Jones might have been guilty of the same; the record discloses only that Wene cited Jones for "inaccurate, incomplete or missing records required by state or federal law." DCP at 417. Jones received the maximum penalty of minus five points in July and August 1999 for failing to track information on patient allergies and chronic conditions and for failing to keep the required audit trail of orders and order modifications. See ch. 246-875 WAC. Jones insists that he "did enter allergy and chronic disease information about customers into my computer record," but he acknowledges that "unbeknownst to me the QS-1 computer system was recording the information but not processing it." PCP at 767. He says that during the August inspection, he discovered the error when he called the computer system vendor, and he had the vendor correct the error at that time. DCP at 341. The record does not disclose why his latter violations, which stemmed from a computer malfunction, were worse than any violations during the first two inspections.

¶ 8 In December 1998, Jones lost points (as with all the cited infractions from this date, we do not know how many points) because "[m]any of the prescriptions in the will call area had labeled expiration dates exceeding the manufacturer's expiration date." DCP at 416; see WAC 246-869-150. In July 1999, Jones received a 15 point deduction for having 24 or more items in stock past their expiration date. PCP at651. Jones admitted in a declaration to the Board that he had some outdated products, but he says he " did not have 38 outdated items," and he insists, "I had a regular process for checking outdated medications." DCP at 214. In August 1999, Jones received a deduction of five points for 11 outdated items. However, Jones says that by August, "I did not have outdated medications on the shelf." DCP at 214. At the least, Jones claims he did not have as many outdated items as the inspectors assert, and it is not clear why Jones was penalized severely for the same infraction he committed in December 1998.

¶ 9 In December 1998, Jones was cited because "[m]ost of the prescriptions in the will call area contained the incorrect NDC [ (National Drug Code) ] number for the product in the prescription container." DCP at 416. In July and August 1999, Jones was again cited for this violation, and he received the maximum deduction of five points. He admits that some medications on his shelves did not match their respective container's NDC number. But he says, "I never substituted a drug that had been prescribed by a doctor," PCP at 767, and the record again does not explain the difference between the assessments over time.

¶ 10 Jones also received deductions for improper record-keeping of prescription files-four points in July and five points in August.But again, in both the earlier December 1998 and February 1999 inspections, Jones was cited for failing to keep his records in accordance with state law, and the record does not explain whether the July and August violations were materially different. Jones also received deductions for improper prescription labels-a total of three points in July and ten points in August. The record is not clear whether these deductions were separate...