Jones v. State

• Decision Date: 04 June 2007
• Docket Number: No. 57850-2-I.,57850-2-I.
• Citation: 166 P.3d 1219
• Court: Washington Court of Appeals
• Parties: Michael S. JONES, R.Ph., Respondent, v. STATE of Washington; State of Washington, Department of Health; State of Washington, Department of Health, 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, Appellants.

166 P.3d 1219

Michael S. JONES, R.Ph., Respondent, v. STATE of Washington; State of Washington, Department of Health; State of Washington, Department of Health, 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, Appellants.

No. 57850-2-I.

Court of Appeals of Washington, Division 1.

June 4, 2007.

Publication Ordered September 17, 2007.

Catherine Hendricks, Assistant Attorney Gen, John Robert Nicholson, Attorney at Law Seattle, WA, for Appellant.

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

AGID, J.

¶ 1 Michael Jones purchased a pharmacy franchise in Marysville, obtained a pharmacy license for it, and became its sole licensed pharmacist. From 1996 through 2000, the Washington State Board of Pharmacy (Board) inspected Jones' pharmacy on several occasions. Because he received two consecutive unsatisfactory inspection scores and had violations the Board found were an immediate danger to the public, it summarily suspended Jones' licenses. He eventually entered into a stipulated order agreeing to a five year suspension of his pharmacy license. Jones later sued the Board, Donald Williams, the Board's Executive Director, and investigators Phyllis Wene and Stan Jeppesen for numerous torts and violation of his civil rights under 42 U.S.C. § 1983. On summary judgment, the trial court denied the Department of Health's (Department) motion to dismiss Jones' claims and ruled that none of the individual defendants were entitled to immunity. We granted discretionary review of these rulings.

¶ 2 We hold there was no basis in law to deny immunity to the individual defendants. Williams, who functioned as a prosecutor when filing the summary suspension and statement of charges against Jones, was entitled to absolute immunity. Because Jones failed to establish any violation of a constitutional right, Wene and Jeppesen should have been granted qualified immunity and the section 1983 claims dismissed. Finally, the trial court erroneously denied the Department's motion for summary judgment on the state law torts because Jones failed to exhaust available administrative remedies.

¶ 3 We therefore reverse and remand for entry of an order granting the Department's motion dismissing Jones' suit.

FACTS

¶ 4 In 1995, Michael Jones, a licensed pharmacist, purchased a pharmacy franchise, The Medicine Shoppe, and obtained a pharmacy license. Jones was the only licensed pharmacist at this pharmacy. On December 17, 1998, the Board inspected The Medicine Shoppe and gave it a failing inspection score of 79. This inspection uncovered the following violations:

[1] Failing to obtain chronic conditions on patients of the pharmacy;

[2] Dispensing the majority of prescriptions in non child-resistant containers without a written request from either the patient or the prescriber;

[3] Various records required by state and federal law were either inaccurate, incomplete or not available;

[4] There was a box of filled prescription containers, many unlabeled, on the floor of the pharmacy.

[5] Investigator Wene discovered a prescription filling error in the will call area. . . .;

[6] Many of the prescriptions in the will call area had labeled expiration dates exceeding the manufacturer's expiration date;

[7] Most of the prescriptions in the will call area contained the incorrect NDC number for the product in the prescription container[.]

Board of Pharmacy Investigator Phyllis Wene reinspected the pharmacy on February 3, 1999, and gave it a passing score of 94. The inspectors deducted points for inaccurate, incomplete or missing records.

¶ 5 On July 12, 1999, Inspectors Wene and Stan Jeppesen inspected The Medicine Shoppe and gave it an unsatisfactory score of 48 for the following violations:

[1] Failing to obtain chronic conditions and allergies on patients of the pharmacy. Disease state management . . . not readily readable by the Pharmacist[;]

[2] Numerous (greater than 10) prescriptions were labeled with a different generic product than indicated on the label or NDC Code. Several of these prescriptions were dispensed in the presence of Board of Pharmacy Investigators[;]

[3] Dispensing the majority (in excess of 90%) of prescriptions in non child-resistant containers without a written request from either the patient or the prescriber for non child-resistant packaging[;]

[4] Thirty-eight (38) drug products were outdated. Of those, 18 drugs were legend or controlled substances and 20 were OTC products[;]

[5] Various records required by federal law (DEA [Drug Enforcement Administration]) were either inaccurate, incomplete or not available. DEA order forms and invoices could not be reconciled. Respondent was unable to locate several required DEA forms. There was poor organization of DEA inventory records, including nonsequential filing. Several DEA records did not include date and amount received on DEA 222 forms[;]

[6] DEA Inventory incomplete, DEA inventory for Schedules III-V was missing. Respondent was unable to generate reports for Schedule II drugs. The daily refill reports were not signed, stored in various locations, out of sequence, with several months not located[;][¹]

[7] Facts and Comparisons, the only reference source in the pharmacy, had not been updated for at least nine (9) months[;]

[8] Pharmacy Assistant did not have a name badge and none had been ordered. No Pharmacy Assistant certificate has been generated or signed. Modifications to the Pharmacy Assistant Utilization Plan were in place without Board approval[;]

[9] The prescription records were inaccurate, missing and poorly organized. Examples include prescription files with non-sequential order. Several prescriptions, both C-II and other drugs were unaccounted for. Prescription files were kept with no organization. Respondent Jones was unable to locate files in a timely manner[;]

[10] Minimum procedures for utilization of the patient medication system were inadequate[;]

[11] During the inspection, patient returned a prescription so that Respondent Jones could correct the instructions for use. The correction was made but no audit trail of the change was entered in the pharmacy computer[;]

[12] The pharmacy was generally disorganized and dirty. The pharmacy sink and immediate area were dirty and with numerous dirty food dishes.

¶ 6 Wene and Jeppesen reinspected the pharmacy on August 10, 1999, and gave it another unsatisfactory score of 56 based on several wrongly filled prescriptions and the following non-exhaustive list of violations:

[1] Six prescriptions selected randomly in the will call area did not have allergy or chronic conditions noted in the patient profile. The disease state — drug interaction fields [on the computer] had been turned off. Respondent Jones was unable to explain the purpose or the clinical significance of the clinical interaction levels that appeared for drug interaction messages[;]

[2] Three prescriptions selected randomly from the will call area were labeled with a different generic product than indicated on the label and/or NDC Code[;]

[3] Forty-one (41) prescriptions were located in the will call area. Of those, forty (40) were packaged in non child-resistant containers and the one that was in a child resistant container was in a container supplied by the manufacturer[;]

[4] Eleven legend or controlled substances on the shelf were beyond the manufacturer's expiration date[;]

[5] As in the July 12, 1999 inspection, various records required by federal law (DEA) were either inaccurate, incomplete or not available. . . .

[6] DEA Inventory records were incomplete. . . .

[7] Five prescriptions which had been filled and returned to the stock area were checked for accuracy of product on the label and against correct NDC numbers. All five prescriptions failed to comply with state and/or federal law. . . .

¶ 7 On August 16, 1999, Board of Pharmacy Executive Director Donald Williams filed a statement of charges and an ex parte motion for an Order of Summary Suspension of Jones' and The Medicine Shoppe's licenses and with the Board of Pharmacy. The next day, the Board granted the summary suspension motion, and Wene served Jones with the Statement of Charges, Ex Parte Order of Summary Action and a Notice of Opportunity of Settlement and Hearing.

¶ 8 On August 30, 1999, Jones filed a Motion to Modify and Stay the summary suspension, contesting the allegations. To support this motion, he filed his own declaration and one from his attorney which stated that the inspectors acted unprofessionally during their inspection and assured the Board of Pharmacy that he held his patients' safety in the highest regard. He argued that, while he may have been disorganized, his actions did not constitute unprofessional conduct or represent any threat to the health, safety, or welfare of his customers. He also claimed that portions of the inspection report were inaccurate. For example, he asserted the August 1999 report penalized him twice for prescriptions without proper NDC numbers because those same prescriptions had been in the pickup bin since the time of the first inspection. He maintained that his record-keeping on non child resistant caps may have been difficult to verify but did not pose a safety concern. He demanded immediate reinstatement of his licenses in order to avoid severe financial hardship. Effective August 31, 1999, The Medicine Shoppe International terminated Jones' franchise because of the summary suspensions.

¶ 9 On September 2, 1999, the Presiding Officer conducted a telephone conference with the parties. During this conference, Jones asked the Board to consider his motion as soon as a meeting time could be arranged, but he elected not to present oral argument. The Presiding Officer told Jones that by filing a written motion he...