Pharmacists Prescribing Duties

Pharmacists’ responsibility to properly and thoroughly investigate the prescription medications they are filling is predicated upon both federal and state law. The Commonwealth of Pennsylvania, PA Code addresses the fundamentals of  pharmacists’ responsibilities. Section 49 Pa. Code § 28.18 sets forth all of the recording keeping and due diligence requirements of which a Pharmacists must meet before handing over any prescribed medication to lay person. Included in these precepts is the statement that

“A pharmacist may not knowingly fill or refill a prescription for a controlled substance or nonproprietary drug or device if the pharmacist knows or has reason to know it is for use by a person other than the one for whom the prescription was written, or will be otherwise diverted, abused or misused. In addition, a pharmacist may decline to fill or refill a prescription if, in the pharmacist’s professional judgment exercised in the interest of the safety of the patient, the pharmacist believes the prescription should not be filled or refilled. The pharmacist shall explain the decision to the patient. If necessary the pharmacist shall attempt to discuss the decision with the prescriber. “

This clause is read together with federal law regarding prescription authority and pharmacists’ duty to conduct due diligence into the person being given the prescription and the doctor writing the prescription. One corporate pharmacy manual I found states: “A pharmacist is required to exercise sound professional judgment with respect to the legitimacy of prescriptions orders dispensed. The law does not require a pharmacist to dispense a prescription order of doubtful origin. To the contrary, the pharmacist who deliberately turns the other way when there is every reason to believe that the purported prescription order had not been issued for a legitimate medical purpose may be prosecuted, along with the issuing physician, for knowingly and intentionally distributing controlled substances.”

The federal regulatory basis for this employer manual is found at 21 Code of Federal Regulations § 1306.04, governing the issuance of prescriptions, which provides:

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act [21 U.S.C. § 829] and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.

Significantly, these two statutes are typically read in pharmacy school then in a federal or state indictment charging a pharmacy owner and its individual pharmacists with violating these precepts and selling their pills for cash to individuals who approach with medically fraudulent prescriptions written by bad doctors who are getting paid for the prescriptions.

Please call me to discuss your concerns about the legality of prescriptions, or the doctors writing them, of which you are being called on to fill.

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Federal Pre-Trial and Trial Motions for an Effective Defense.

Federal criminal matters typically involve complex pre-trial issues. Your counsel’s ability to recognize and trouble a shoot matter to identify pre-trial motions is an important part of every defense.

Sometimes, is a pre-trial motion is successful, it will allow for extensive discovery and a consolidation of the evidence and charges against an accused. A list of some important pre-trial motions include a: Motion to Dismiss an Indictment, Motion for a Bill of Particulars, Motion to Compel Discovery, Motion for Jenks Act Materials, Motions to Sever an Indictment, Motion to Compel/ Strike Bruton Act Materials, Motion to Identify and Expert, Motion to Identify Evidence Subject to Potential Suppression, Motion to Produce Brady/Giglio Material, Motion to Exclude Prior Bad Acts, Motion to Preclude Criminal Record, and Motions to Compel certain Jury Voir Dire Questions.

During trial, counsel must remain vigilant to protect the record from negative evidence being presented to the jury.  Included in this responsibility is presenting oral motions in limine to limit witness testimony to be consistent with the proffered evidence during any pre-trial hearing.  Counsel must be ready to also file Motions to Preclude the Government from presenting to the jury blown up exhibits or videos that may be prejudicial to a defendant and Motions to Dismiss parts of indictment if the evidence does not meet the statutory requirements and a jury maybe caused to speculate.

If counts of an indictment are dismissed, Motions to Modify potential jury instructions to comport with the evidence and advise the jury to disregard certain evidence that is now irrelevant is important. At the close of the Government’s case, a Motion for Judgment of Acquittal is always necessary to protect the record. Significant victories in whittling down the indicted charges will also allow for better jury instructions.  All together, these motions will it harder for the government to meet its burden of proof.

In cases involving the use of a computer and the internet, hiring an expert to review the computer forensic evidence is a must. Your expert will insure the government’s computer forensic evaluation is legally correct. The expert will either be present at trial to testify with a report or to assist in the evaluation of the government’s evidence in cross examination. Proper interpretation to the jury of the government’s computer evidence will eliminate a jury’s assumption and automatic acceptance of the government’s expert’s testimony as the gospel.

Every internet possesory pornography case includes the burden of proof of interstate commerce of each image in question. Expert testimony that items on a computer were downloaded from the Internet, without proper foundation, is a false argument for which a hired defense expert will be able to rebut. Significantly, a Motion to Compel Inspection of your computer in the government’s possession will be necessary. Your expert must conduct an independent Forensic investigation of the government’s computer evidence to ascertain the factual basis of the government’s expert report. What media devices the government’s expert reviewed, on what digital media device certain images or evidence was located and when those items were created, viewed, and uploaded or transferred on that computer, through what means, is very relevant in the inter-state burden of proof issues.
Call me to discuss your case and how you wish your counsel to handle your matter.

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