Collins & Lacy professional liability practice group chair, Robert Peele, talks with Dr. Addison Livingston, chair of the South Carolina Pharmacy Board. Learn some of the legal and ethical matters that impact this important state industry. Listen here and read the conversation below.
Ethical dilemma in a pharmacy
The latest in legal news and information from Collins & Lacy, a leading South Carolina defense firm for construction, worker’s comp, hospitality, retail, trucking, professional liability, mediation, government, and ethics matters. The views expressed by the guests are their own and do not necessarily reflect that of Collins & Lacy, its management, or employees. This is The Legal Bench.
Michael Burney: Welcome to The Legal Bench. I’m Michael Burney, Director of Business Development for Collins and Lacy defense firm in Columbia, South Carolina. With me today is attorney Robert Peele, chair of our professional liability practice group and Rob has a special guest to help us understand the legal and ethical considerations for practicing pharmacists in South Carolina.
Robert Peele: Thanks Mike. We are pleased to have Dr. Addison Livingston with us today. Dr. Livingston is a life-long resident of South Carolina. He received his Doctor of Pharmacy degree in 1997 from the University of South Carolina. He’s the co-owner of Hawthorne Pharmacies located in the midlands of South Carolina. Throughout his career as a pharmacist he has served patients as a retail pharmacist, consultant pharmacist, and compounding pharmacist. He joins us today as Chair of the Board of Pharmacy for the South Carolina Labor, Licensing, and Regulation. Dr. Livingston thanks for being with us today and please share with us your road to becoming the Board of Pharmacy chair.
Dr. Addison Livingston: Rob and Michael, thank you for having me today. I guess twenty something years ago when I was in pharmacy school, I never would have imagined that I would be chairman of the Board of Pharmacy. That was something that was not planned out. I had an opportunity twelve years ago to run for the second congressional district seat in South Carolina and did so really kind of following the steps of one of my mentors and was able to be elected to that seat by the pharmacists of the second congressional district and then subsequently being appointed by Governor Sanford. Through that time as you progressed and seniority, the most senior member of the Board is the chairman, so I have now been the chairman three different years, not sequential years, but three different times during my career at the Board. I’m finishing up my twelfth year. You can only serve two 6-year terms, and this is my final year on the Board of Pharmacy, so I am the chairman and I am proud to have represented the people of South Carolina in that position.
RP: That’s very interesting and thank you for your service. You’ve given us a list of areas where pharmacists should be mindful in their practices to have the highest ethics and under the standards of care. Let’s review those one at a time. First, help us understand how fraud, waist, and abuse can be an issue in pharmacy?
AL: Well when I started my career in the late 90s this was something that was more of an ethical concern than a legal concern and I would say that some of the ethical concerns have been codified and now it’s both an ethical and a legal concern, but there’s still ethical issues there. Just an example of something that pharmacists face on a day-to-day basis is you call in for a refill and the pharmacist fills that medication for you, they put it in the will call bin and you never come pick it up. What does that pharmacist do? He has now an ethical and a legal responsibility after 14 days to go through his will call bin and reverse that claim that he or she has billed to the insurance company and put that medication back in stock. It would be very easy for someone to just dump those tablets back in a stock bottle and not reverse that claim and that would be a concern. We have an ethical responsibility to make sure we are not wasting healthcare dollars, that we’re not recommending medications to be used for a particular therapy that would be more expensive just because maybe the pharmacist is reimbursed more. They’re real concerns and today every person that works in a pharmacy is required if you’re going to bill Medicare Part D for any medications, which every pharmacy I would think is doing so, you have a responsibility to train each one of your employees on fraud, waist, and abuse on a yearly basis.
RP: Pharmacists have ethical responsibilities to patients whether in a treatment or retail environment. What is important for pharmacists to be mindful as far as ethics?
AL: Well, the first thing is to remember that we’re here for the patients that we serve. We view ourselves as a provider for healthcare. Some of the pairs still review us, view us as a commodity base business, and what I mean by that is we are paid for the product that we sell, and we are reimbursed for that product. We provide a service to these patients. There is some counselling involved. It’s a legal responsibility to go over the medication with a patient when they come in. So, we’re here for patients, and what that means, and it’s kind of been evident throughout the pandemic that we’re in now is that we have to have our doors open, we have to come to work, we can’t … one of the first things with the pandemic is how do we make sure we ensure the confidential care that we provide to the patients, because some patients are getting life sustaining medications from us, and so we’re here for those patients and we have a responsibility to be here for those patients. From a regulatory perspective some of the things that I see from time to time is a patient has a legal right to have the pharmacy of their choice. Sometimes patients will want to transfer their prescription from one pharmacy to another and we get complaints that are issued to the Board from other pharmacists where another pharmacist would not transfer a prescription. It’s important to remember that we’re here to serve the patients and so they have that right to use the provider of their choice and so we have to make sure all pharmacists remember those ethical responsibilities of being there for the patient.
RP: One of the topics that you have shared with us is workplace conditions. Tell us how this can be a factor in ethics and standard of care.
AL: Well this is a hot topic throughout the United States. In fact, NBC had a report recently this week that I viewed about the work conditions inside of a pharmacy and frankly it’s isolated to a lot of our bigger chains where there is not adequate staff and adequate working conditions for safe healthcare to be delivered. The Board of Pharmacy has dealt with this issue for a while and we have received comments and testimony from pharmacists that are in these situations where they make work a 13-15 hour shift, they’re not allowed a lunch break, and may not be allowed adequate bathroom breaks, they don’t have enough support staff to do the job in what they consider a safe manner, and it seems that some of these environments it’s all about the mass production of prescriptions more than it is about adequate healthcare. The Board is here to protect the people of South Carolina, to regulate the practice in a way, to enforce the statutes that have been created by the General Assembly, to protect the people of South Carolina, so some of these pharmacists have come to us and said hey we’re not able to work in a safe manner. It’s been a very different discussion and again is a national issue because there’s not a lot of latitude in the law for us to regulate how employers manage their businesses and so while we might want to enforce certain things we’re not able to. We don’t have that legal authority to do so and that’s been difficult for some of the professionals that we license and permit to understand. Yes, we understand your fight, we understand your concerns, but we’re not able to do a lot in terms of helping you. I will tell you that we have kind of revamped some of our investigative processes so that when a complaint comes in that’s one of the things we look at. How many prescriptions were filled that day? How many people were involved in producing work that day and making sure that if an error occurs because of workplace conditions, we will address that in the best way we can.
RP: We’ve heard the term diversion or diversion of prescription medications. What does that exactly mean? How does it come into play in the pharmacy environment?
AL: Diversion is probably a number one issue that we deal with at the Board of Pharmacy. Diversion is just taking prescription medications out of the pharmacy whether it’s for personal use, to sale on the street, that includes both controlled substances, narcotics, or maybe non-controlled substances. There’s significant diversion of lifestyle type medications in the pharmacy whether it be Viagra, Cialysis of the world, and they’re sold on the street. The primary issue that we have in South Carolina and I would say every other state in the United States, is the diversion of controlled substances. Prescription drug abuse, that’s what it is. This can come in a lot of different forms. It can be from a pharmacist, a technician, and technicians that work in a pharmacy are registered by the Board of Pharmacy, so we have some authority over them and their ability to continue to work in a pharmacy. But that’s the issue that we deal with the most and it’s a significant issue. It’s a heartbreaking issue in a lot of situations where a professional has basically ruined their career, ruined their life because of diverting prescription medications. While we want to be very compassionate to those individuals, we are here to protect the public of South Carolina and the people of South Carolina, and so it’s important for me as a member of the Board of Pharmacy to make sure that we deal with those individuals who are involved in diversion in a manner that ensures the safety of the citizens of South Carolina and I’m proud to say that I think we do a good job with that. Unfortunately, diversion is a huge issue and it’s something that the state has taken a deliberate effort to improve from a number of both regulatory entities and just agencies in the state have done a good job. I can say in the last five years we are making some progress on this epidemic that we’re involved with prescription drug abuse here in South Carolina.
RP: When there is a complaint lodges against a pharmacist, help us understand the process of review with the Board of Examiners?
AL: We are a complaint-driven Board like most of your other medical boards in South Carolina. We do have a, we’re a monopoly of some degree in that we also have an inspection process within the Board of Pharmacy. What I mean by that is we have inspectors who go into the facilities and they have an inspection, I guess you’d call it a checklist, an inspection sheet that they’re going down and make sure they’re looking for certain things to ensure that the pharmacy is practicing in a manner to be compliant with the law and most importantly, practicing in a manner that is safe for the people of South Carolina. A complaint can come to us in a lot of different ways. It can come from the public, and I can tell you that every complaint is investigated and that’s important to remember. I can tell you one time early in my career I had a situation where an individual was getting a prescription for controlled drugs. He calls back and says hey I got this prescription yesterday from another pharmacist that was working, and they did not give me the entire quantity. He said I’m five tablets short, so I go through an internal investigation where I reviewed that the pharmacist had double counted it, their inventory was correct and everything seemed to be in place, and I told the patient that it appears that no you did get the adequate amount, or the right amount. He says well I’m going to call the Board of Pharmacy and issue a complaint if you don’t give me at least five tablets, so I did do that, well I’m sorry I didn’t give him the tablets but he did follow through and issue complaint and that simple complaint for those five tablets was investigated. So, everything comes to the Board in terms of a complaint is investigated and that could be from the public. It could be from another healthcare professional. There’s a responsibility for liability insurance companies if a claim is issued, they issue a complaint and notify the Board of Pharmacy and that’s investigated by the Board. But a complaint can also come from our inspectors. When they go into a facility for routine inspections and things are not being performed like they should, then they can open up a complaint and it’s investigated. From there, the investigator collects all the information and he has to present his findings to an Investigation Review Committee (“IRC”). This committee is made up of professional members that have served on the Board of Pharmacy in the past. They have some attorneys from the prosecution side of things within LLR. We have the administrator of the Board of Pharmacy and they discuss the findings; they decide what path they want to take with this particular case and that can take a couple of different roads. One could be that there are some guidelines that the board of Pharmacy has issued to the IRC that they can say we recommend to the Board that this case be dismissed because there’s not adequate evidence and that’s kind of what happened in the scenario I gave you earlier with those five tablets and a complaint was issued against me. Or, it could be that hey this is a pretty egregious offense and we need to send this to the Board for a formal hearing, where a respondent comes in and there’s pretty much a trial and the Board then will issue a verdict in the case and any discipline that is warranted.
RP: Dr. Livingston, you have done a wonderful job in educating us as to the legal and ethical considerations for your industry. We have frankly talked about where things can go astray but talk to us for a moment about the industry as a whole. What is the level of quality and ethical care you see around our state?
AL: Well Rob, I’m a guy that is a glass half full kind of guy. I’m always looking at the positive. I can tell you that the pharmacy industry is a strong industry and I think it’s an industry that does a phenomenal job. There are always some bad apples, so to speak, or some situations where errors occur and we are all human and when humans are involved errors are going to occur, but overall, I am very very proud of our profession. I’m particularly proud of our profession during this COVID pandemic that we’re involved in. I’ve said this several times from the chair seat of the Board of Pharmacy in that our profession has risen to the occasion. Again, back to the beginning of the pandemic when businesses were closing, it was important that pharmacies continue to do the work that they do every day, both on the community retail side, the hospital side, and they did so. They rose to the occasion, came to work, took care of patients. We didn’t have any errors that were significant related to COVID. They did a great job. And now as we transition into, I’m hoping, the end of this and we’re intricately involved in the mass vaccination efforts and both our colleagues on the hospital side and the community side who have given vaccines in the pharmacies. I think we’re going to be the majority of Americans are going to get the vaccine in a pharmacy and so I’m proud of the work that’s being done. I’m proud of the profession. I’m proud of the professionalism of the pharmacists out there and how they have risen to the occasion. And so, again in my mind, it’s a strong industry and it’s an industry that’s on the upside of things.
RP: Thank you Dr. Livingston for educating us about the Board of Pharmacy and the strategies to help pharmacists provide the highest quality of care on an ongoing basis.
MB: We want to thank Dr. Livingston for your time to speak with us today and also Collins and Lacy professional liability attorney Rob Peele for your questions. And, for the latest news of interest to South Carolina businesses, join us right here for the next episode of The Legal Bench.