Vinci v. Campbell, 2010 Ohio 451 (Ohio App. 2/10/2010)

• Decision Date: 10 February 2010
• Docket Number: No. 2008 AP 08 0053.,No. 2008 AP 08 0052.,2008 AP 08 0052.,2008 AP 08 0053.
• Citation: 2010 Ohio 451
• Parties: Scott A. Vinci, R.Ph., Plaintiff-Appellee, and Connie J. Campbell, R.Ph., Plaintiff-Appellee, v. Ohio State Board of Pharmacy, Defendant-Appellant.
• Court: Ohio Court of Appeals

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2010 Ohio 451

Scott A. Vinci, R.Ph., Plaintiff-Appellee, and Connie J. Campbell, R.Ph., Plaintiff-Appellee, v. Ohio State Board of Pharmacy, Defendant-Appellant.

No. 2008 AP 08 0052.

No. 2008 AP 08 0053.

Court of Appeals of Ohio, Fifth District, Tuscarawas County.

Date of Judgment Entry: February 10, 2010.

Administrative Appeal From Tuscarawas County Court of Common Pleas Case Nos. 2007 AA 03 0208 & 2007 AA 03 0216.

Reversed.

Douglas E. Graff, 604 East Rich Street, Columbus, Ohio 43215-5341, for Plaintiffs-Appellees.

Nancy H. Rogers, Attorney General, Melissa L. Wilburn, Assistant Attorney General, Ohio State Board of Pharmacy, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126, for Defendant-Appellant.

Before: W. Scott Gwin, P.J., Julie A. Edwards, J., Patricia A. Delaney, J.

OPINION

EDWARDS, J.

{¶1} In Case No. 2008 AP 08 0052, appellant Ohio State Board of Pharmacy appeals from the July 24, 2008, Judgment Entry of the Tuscarawas County Court of Common Pleas in Case No. 2007 AA 03 0208 reversing and vacating the Order of the Ohio State Board of Pharmacy suspending the pharmacist license of Scott Vinci for a period of five years. Appellant, Ohio State Board of Pharmacy, in Case No. 2008 AP 08 0053, appeals from the July 24, 2008 Judgment Entry of the Tuscarawas County Court of Common Pleas in Case No. 2007 AA 03 0216 reversing and vacating the Order of the Ohio State Board of Pharmacy suspending the pharmacist license of Connie Campbell for a period of three years.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellee Scott Vinci is the owner of and a pharmacist at Dusini Drug, a small independent pharmacy located in New Philadelphia, Ohio. Appellee Connie Campbell is a pharmacist at Dusini Drug.

{¶3} On July 19, 2005, the Ohio State Pharmacy Board issued Notices of Opportunity for Hearing to Dusini Drug and appellees Vinci and Campbell. Each Notice was one hundred thirty-eight (138) pages long, consisting of six hundred fifty-seven (657) paragraphs. Paragraphs 2 through 331 of the Notice alleged that the specified pharmacist at Dusini Drug: did knowingly sell, conspire to sell, and/or aid and abet the sale of a controlled substance when the conduct was not in accordance with Chapter 3719., 4729., and 4731. of the Ohio Revised Code, to wit: [the pharmacist] sold controlled substances to [the listed patients] when not for a legitimate medical purpose issued by a prescriber acting in the usual course of his professional practice and in compliance with the administrative code rules addressing pain management and violating Rule 4729-5-30 of the Ohio Administrative Code and 21 CFR 1306.04. Similar violations were alleged in Paragraphs 332 through 657 of the Notices, except the charges in these paragraphs involved dangerous drugs other than controlled substances.

{¶4} An administrative hearing before the Ohio State Board of Pharmacy commenced on January 16, 2007. The following evidence was adduced at the hearing.

{¶5} At the hearing, David Gallagher, a compliance agent with the Ohio State Board of pharmacy, testified that he was assigned to investigate Dusini Drug and appellees Campbell and Vinci. Gallagher testified that in late 2002, Dr. Edward DeHass came to New Philadelphia to open up a pain clinic known as Professional Pain Management of Ohio ("PPMO"). The clinic was near the off ramps for I-77. Prior to opening the clinic, Dr. DeHass sent out mass mailings in Kentucky, West Virginia and Ohio announcing his opening. He also visited area pharmacies to introduce himself and provided the pharmacy with a letter explaining the nature of his practice. Previously, Dr. DeHass had a pain management clinic along the Ohio River.

{¶6} Gallagher testified that between mid and late February of 2003, he started receiving telephone calls complaining about PPMO and Dr. DeHass' prescriptions. According to Gallagher, four of the calls came from area pharmacies in New Philadelphia "indicating that they had been starting to see several of PPMO's customers and that they were very alarmed by it and they were seeing several red flags that worried them about whether the prescribing habits of the doctor were legitimate." Transcript at 26. As a result of his surveillance of the pain clinic, Gallagher learned that customers of the clinic were going to Dusini Drug, which was approximately three to five miles from the clinic.

{¶7} As a result of the complaints, Gallagher began investigating PPMO in February of 2003. PPMO closed its doors in late December of 2003.

{¶8} Gallagher testified that he went to Dusini Drug on January 13, 2004 to collect the prescriptions from PPMO and discovered that Dusini had filled quite a few of the PPMO prescriptions, causing him to ask questions of the pharmacists. He testified that appellees were not under investigation at that time. Appellees Connie Campbell and Scott Vinci were both interviewed by Agent Gallagher. Gallagher testified that most of the prescriptions filled at Dusini for PPMO were for two drugs, Hydrocodone 10 and Carisoprodol 350 milligrams (also known as soma), which is a muscle relaxant. Upon reviewing the pharmacy records, he discovered that in less than four months, the pharmacy had dispensed in excess of 500,000 doses. Gallagher testified that there were a total of 1,581 PPMO customers that went to Dusini Drug. He further testified that 78% of everything Dusini Drug did from PPMO came in the last four months of 2003.

{¶9} When asked why the citation issued to appellees only contained approximately 328 patients, Gallagher responded as follows:

{¶10} "THE WITNESS: The citation was prepared by myself and other office staff with the mind set that the PPMO customer's (sic) contained in it were those who had 12 weeks of continuous therapy or more as referred to and addressed and the Medical Board's Administrative Rule, regarding intractable pain and how to handle it In it, in creating the documents, the citation format, we put in the entire patient profiles of these PPMO customers at Dusini Drugs as well as in the other citations. They each mirror each other." Transcript at 39.

{¶11} Gallagher was questioned about the four different pharmacies that contacted him in February of 2003 with concerns about PPMO. When asked what concerns the pharmacists at those pharmacies expressed to him, he responded as follows:

{¶12} "A. They stated that they were starting to see customers from Professional Pain Management coming in and it was the red flags that they were talking about. They had great concerns about the way these customers were coming in, the way the prescriptions were coming in and so forth. Specifically, some of the concerns involve the fact that all of these PPMO customers were coming in getting the same two drugs, principally, Hydrocodone 10 and Carisoprodol 350, that they were coming in and they were from West Virginia and Kentucky, predominately; that they were coming in, asking for specific pill color; that they were coming in in groups, driving in in groups and in some of the pharmacies they would see four or five get out of a single car. They were predominately paying cash. It concerned one of the pharmacist (sic), Mr. Nussbaum, that when he approached the doctor with some of this information, that the doctor's attitude was, it was the kind of drugs that they wanted and, if that's what they wanted, that's what he was going to give them." Transcript at 44.

{¶13} Notarized written statements from the area pharmacists were admitted as State's Exhibits 2, 3, 4 and 5. Ted Nussbaum with Discount Drug Mart, in his statement (Exhibit 2) stated that he had concerns over numerous patients asking for specific color or tablets Discount Drug had and stated that he "felt this was a sure sign of problems because drug seekers or sellers usually know what they are looking for." In his statement, he also voiced concerns over the fact that the patients were coming a long way. In his notarized statement, Nussbaum stated that he told Dr. DeHass that he would have to handwrite his prescriptions in the proper format rather than call them in and that Dr. DeHass gave him a hard time.

{¶14} Brad White, a pharmacist with the Medicine Shoppe, stated in his notarized statement (Exhibit 3) that he was concerned that all of PPMO patients were receiving the exact same drugs in the same strength and under the same directions, that they were from out of state and that he was repeatedly asked by patients for the "blues". He, in his statement, also noted that he observed more than one patient arrive in the same car. Medicine Shop only filled fifteen (15) prescriptions before refusing to fill any more.

{¶15} PPMO was closed down on December 16, 2003, after the execution of a search warrant.

{¶16} Gallagher interviewed appellee Vinci in January of 2004 as part of his investigation into PPMO. Previously, Gallagher had visited Dusini Drug to collect prescriptions that it filled for PPMO. According to Gallagher, appellee Vinci told him that he was aware that most of the patients were cash patients and were coming in large numbers from West Virginia and Kentucky and that it seemed to be a problem that they were all getting Hydrocodone and Carisoprodol. Appellee Vinci, according to Gallagher, told him that customers were flocking to Dusini Drug because other pharmacies in the area were not filling their prescriptions and that he was concerned that customers would ask for pills by color. Gallagher testified that appellee Vinci realized that all of the PPMO customers were receiving the same drug therapy from PPMO.

{¶17} At the hearing, Gallagher testified that he also spoke with appellee Campbell in January of 2004 and that she said that the customers started flocking to them after other pharmacies would not fill their prescriptions. Gallagher testified that appellee Campbell "indicated that she had never seen anything like this before, meaning-and talking about never seeing any doctors who...