On The Docket
David B. Brushwood, BSPharm, JD
Pharmacist recovery programs provide an avenue through which impaired pharmacists can receive treatment and return to practice subject to strict conditions.
A Pennsylvania pharmacist entered a recovery program that required him to “abstain from the use of drugs of abuse including alcohol in any form.” The pharmacist’s license was suspended, and the suspension was stayed in favor of probation as long as program rules were followed.
After a third random test was positive for alcohol, the board of pharmacy requested a preliminary order terminating the period of probation and suspending the pharmacist’s license.
A hearing took place, and the pharmacist testified that he did not drink alcoholic beverages before his positive test. He testified that he “consumed kratom, kefir, and apple cider vinegar, which may have been responsible for the positive result.” He testified that he had not reported his use of these substances to the program because they could be purchased without a prescription and were not limited to purchase at a liquor store.
The hearing officer recommended that the pharmacist’s license be indefinitely suspended, noting the pharmacist’s “careless lack of appreciation for the strictures of program supervision.” The board of pharmacy accepted this recommendation and suspended the pharmacist’s license. The pharmacist appealed this ruling.
Rationale
On appeal, the pharmacist contended that the phrase “drugs of abuse including alcohol” referred to any product classified as a drug of abuse in which alcohol was included. The pharmacist claimed that the products he consumed, although they included small amounts of alcohol, were not classified as drugs of abuse. Therefore, according to the pharmacist, the terms of the program had not been violated.
Two of the three appellate judges disagreed with this argument. They focused on the phrase “alcohol in any form.” They explained that under the pharmacist’s interpretation, “he would be permitted to drink as much alcohol as he wants as long as it is not contained in a drug of abuse.” Moreover, “he would be permitted to use drugs of abuse as long as they did not contain alcohol.” The two judges ruled that “this result would be absurd and cannot have been the intent of the agreement.”
The third judge disagreed with this interpretation. This judge concluded that the phrase “abstain from the use of... alcohol in any form” is ambiguous. Interpreted literally, it would forbid the pharmacist to use rubbing alcohol on his skin. It would forbid the pharmacist to use cologne or to put windshield wiper fluid in his automobile. Ambiguities in a contract are construed against the drafter and in favor of the other party.
The third judge also noted that the program agreement did not list kratom, kefir, and apple cider vinegar as being prohibited. The board of pharmacy “credited [the pharmacist’s] testimony that he did not know that kratom, kefir, and apple cider vinegar contained alcohol.” In addition, “there was no evidence that [the pharmacist] ever lost his sobriety.”
By a vote of two against one, the appellate judges affirmed the decision by the board of pharmacy to suspend the pharmacist’s license.
Takeaways
The key message of this case is that pharmacist recovery programs are strict, and they cannot be finessed. To protect the public, boards of pharmacy will rigorously enforce program rules. The two judges who joined in the majority opinion recognized this necessity.
On the other hand, program rules should be explicit, as the dissenting judge indicated. The verb “use” with reference to substances of abuse is more frequently found in street slang than in medical treatment where the verbs “take” and “ingest” are more common.
Pharmacists in recovery are to be congratulated and supported in their journey. One slip can be devastating to a pharmacist’s career, even if inadvertent. Colleagues of pharmacists in recovery can provide the support that is necessary to prevent inadvertent lapses from occurring. ■