Hearsay, The Pharmacy Board, and Due Process

A recent client sought reinstatement of her pharmacy license after a period of suspension for failing out of the SARPH, Pennsylvania pharmacists’ drug monitoring program. The Pharmacy Board rejected her petition. I represented the pharmacist only in her appeal to the Commonwealth Court.

Prior counsel cost her her license and Markowitz did not utilize an attorney during her petition for reinstatement process, including the hearing before the Pharmacy Board.  She represented herself very poorly at that hearing.  As a result, the Commonwealth Court affirmed the Pharmacy Board’s denial of reinstatement. Carol Markowitz should have won her appeal because at the Pharmacy Board hearing the Board accepted inadmissible expert report evidence that tainted the Board’s consideration of the case.  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

With every SARPH or PHMP approved monitoring program, following all terms and conditions of the case worker’s demands establishes compliance with a professional board order. Lack of compliance results in prosecutors filing motion to kick licensees out of the monitoring programs and retroactively suspend their license. Thereafter, before reinstatement should be sought and can be approved by the board, licensees must prove compliance with the terms and conditions of the monitoring program as mandated by the disciplinary order suspending the license.

In  Markowitz’ circumstance, she remained drug-free, did not work, and was otherwise compliant with all terms and conditions of the SARPH program. However, during the term of her suspension, she was not enrolled in the SARPH. No SARPH case worker appeared for her at her petition for reinstatement, did not approve of her medications, and did not perform the perfunctory supervised tests to confirm her  drug-free condition.

As part of the reinstatement process, Markowitz contacted SARPH, which sent her to a fitness to return to work evaluation by Drs. Heran and Garbely. These two doctors wrote a report, which the Board utilized against Markowtiz.  Neither appeared nor and testified at the reinstatement hearing.  The prosecutor moved Drs. Heran and Garbely‘s unqualified experts report into evidence.  The Board relied upon these two individuals’ hearsay report to find Markowitz was not eligible for reinstatement.
On appeal Markowitz complained about the Board’s due process violation in considering the expert reports for which Markowitz was unable to cross examine and question the author(s) of the report. Markowitz also complained about Drs. Heran and Garbely’s competence, prior histories of license suspensions, and their own drug addiction issues that ultimately lead to their becoming drug counselors and experts.

“Hearsay is defined as an out-of-court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement.” Bailey v. Unemployment Compensation Board of Review, 142 Pa. Commw. 294, 597 A.2d 241, 243 n. 3 (Pa. Cmwlth. 1991). “Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding[ ],” but “[h]earsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding[ ], [i]f it is corroborated by any competent evidence in the record….” Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). “[A] finding of fact based [s]olely on hearsay will not stand.” Id.

Surprisingly, the Court ruled “It is clear that the joint report is hearsay and not corroborated by other evidence of record. We agree with Markowitz that the report of Drs. Heran and Garbely should not have been considered by the Pharmacy Board.”  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

Please call me to discuss your contact with these two doctors, their handling of your licensing case, and any case in which they were involved.

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