Moskowitz v. Board of Regents of the University

drugs and of exempt narcotic drugs during certain periods in 1969 and 1970, and of filling 39 forged prescriptions for narcotic drugs not in good faith during said periods. Petitioners contend that the findings of the Commissioner of Education sustaining the charges were arbitrary in that they are not supported by substantial evidence. With regard to the charges based upon failure to maintain proper, adequate and correct records, petitioners contend, essentially, that certain shortages of narcotics and other drugs discovered upon audit were not the result of improper diversion, but rather the result of a burglary of the premises, and further urge that certain shortages and overages in their various drug supplies were de minimis, and therefore do not constitute violations. These contentions are patently without merit. The petitioners were not charged with having improperly diverted the drugs. Regardless of the cause of their diversion, petitioners do not dispute the fact that their records failed to indicate the loss, clearly in contravention of subdivision 9 of section 3333 of the Public Health Law,^[1] which requires records to contain "a detailed list of narcotic drugs lost, destroyed or stolen, if any, the kind and quantity of such drugs and the date of discovery of such loss, destruction or theft. A report of such loss, destruction or theft and other pertinent related facts shall be furnished promptly to the commissioner.” No such records were kept nor was any such report furnished to the commissioner. Moreover, there is a valid public purpose to the requirement that precise records of dangerous drugs be kept, and the commissioner may properly take the view that no violations, regardless of how "minor”, should be tolerated. At best, the degree of the violation is a matter to be taken into consideration in assessing the penalty, but there is no basis for holding that a "de minimis violation” is not a proper foundation for a determination that petitioners, in failing to comply with the requirements for record-keeping, were guilty of unprofessional conduct. With regard to the forgeries, petitioners contend that the prescriptions were regular on their face, and therefore raised no duty of further inquiry as to their validity. On the other hand, the Assistant Director of the New York State Department of Health, Bureau of Narcotic Control, testified that the good faith requirement for the sale of narcotic drugs (Public Health Law, § 3322, subd 1) and stimulant or depressant drugs (Public Health Law, § 3381, subd 1) imposes a duty upon the pharmacist to inquire into the bona ñdes of a prescription and satisfy himself as to its validity before filling it. Among the factors which might have alerted a diligent pharmacist as to the need for inquiry, and which were testified to as having been present in the instant case, were the issuance of a prescription on the form of a New Jersey physician to a Manhattan resident which was attempted to be filled in this Bronx pharmacy; the fact that one or more customers returned repeatedly to fill prescriptions for narcotic or stimulant or depressant drugs when such customers had previously received prescriptions for identical drugs, the supply of which would not have been exhausted had they been consumed in accordance with the directions on the prescription; and the fact that certain prescriptions required that they be filled in containers which appeared to be improper in size relative to the quantity of the drugs prescribed. Another factor which the evidence established should have prompted inquiry in the present case was the large quantity of Dolophine (methadone) prescribed in certain instances. At the very minimum, the same considerations which prompted the Court of Appeals to recognize "the need for the administrative formulation of standards of professional conduct