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CONFO MEO CO " u . O A!GiNAL FILED PY

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Sherri R c a,, B . ter, Execut,ve Oft

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CASE NO. 19STCP00129

[PR:8FOQIJ~] ORDER GRANTING PETITIONER'S APPLICATION FOR STAY OF ENFORCEMENT

MEDHAT HELMY BAKR,

Plaintiff/Petitioner,

vs.

CALIFORNIA ST ATE BOARD OF PHARMACY,

Defendant/Respondent.

[PROPOSED] ORDER

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28 FENTON LAW GROUP LLP

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Petitioner Medhat Bakr's Ex Parte Application for Stay of Enforcement came on regularly for

hearing on January 11, 2019 at 8:30 am in Department 85 of the above-captioned court. Having

reviewed all papers filed in support of and in opposition to that motion the court orders as

follows:

Respondent California State Board of Pharmacy's Decision and Order in Case No. 5891,

I dated December 11, 2019 and effective January 10, 2019 is stayed while the merits of this matter

are fully explored by this Court.

IT IS SO ORDERED.

DATED: $ . 2019

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[PROPOSED] ORDER

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against: MEDHAT HELMY BAKR, Pharmacist License No. RPH 43645

Respondent.

Case No. 5891

OAH No. 2017110655

DECISION AND ORDER

The attached Proposed Decision of the Administrative Law Judge is hereby adopted by

the Board of Pharmacy, Department of Consumer Affairs, as its Decision in this matter

This Decision shall become effective at 5:00 p.m. on January 10, 2019.

It is so ORDERED on December 11, 2018.

BOARD OF PHARMACY DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

By Victor Law, R.Ph. Board President

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

MEDHAT HELMY BAKR, Pharmacist License No. RPI-I 43645,

Respondent.

Case No. 5891

OAHNo. 2017110655

PROPOSED DECISION

This matter came on regularly for hearing on September 4 and October 2, 2018, at Los Angeles, California, before David B. Rosenman, Administrative Law Judge (ALJ), Office of Administrative Hearings, State of California. Complainant Virginia Herold was represented by Deputy Attorney General Christina Felix. Respondent Medhat Bakr was present and was represented by Ronald S. Marks, Attorney at Law.

Oral and documentary evidence was presented and the matter was submitted for decision on October 2, 2018.

SUMMARY

Respondent Medhat Bakr, as a pharmacist at Costco in 2013, filled three prescriptions for his son, and refilled one of those prescriptions, when he was not authorized to do so. In 2015, respondent :filled a prescription that included an obvious error in the instructions to the patient, and did not contact the prescriber for clarification. Respondent also misread and unintentionally changed the instructions to the patient.

FACTUAL FINDINGS

The Administrative Law Judge finds the following facts:

1. The Accusation and First Amended Accusation were issued by complainant Virginia Herold in her official capacity as Executive Officer of the Board of Pharmacy (Board). Respondent filed a Notice of Defense including a request for a hearing.

2. On August 1, 1990, the Board issued Original Pharmacist license number RPH 43645 to respondent Medhat Helmy Bakr, which was in full force and effect at all times relevant to the charges and will expire on July 31, 2020, unless renewed.

Forged Prescription; Furnishing Without Valid Prescription; Possession a/Controlled Substance: Tramadol, Motrin and Norco, 2013

3. The allegations of the First, Second and Third Causes for Discipline in the First Amended Accusation relate to prescriptions issued in May and June 2013 for respondent's son, Ramsey Bakr, 1 who suffered second and third degree burns to his feet and legs. At that time, respondent was the pharmacist-in-charge of a Costco pharmacy in Canoga Park, California.

4. Ramsey Bakr was under the care of Peter Grossman, M.D., and Kurt Richards, P.A. (physician assistant). Mr. Richards was authorized to prescribe medications for Ramsey Bakr. Either Dr. Grossman or Mr. Richards prescribed Norco on May 17, 2013, quantity 40. The prescription was filled at Costco the same day and assigned number 1096113.

5. Either Dr. Grossman or Mr. Richards prescribed Percocet, a narcotic painkiller, on May 31, 2013, quantity 40, with instructions to take one pill every six hours as needed for pain.

6. Norco, a brand ofhydrocodone bitartrate and acetaminophen, is a Schedule III controlled substance as designated by Health and Safety Code section 11056, subdivision (e)(4), and is a dangerous drug within the meaning of Business and Professions Code section 4022, in that it requires a prescription under federal law. Tramadol hydrochloride is a dangerous drug within the meaning of Business and Professions Code section 4022, in that it requires a prescription under federal law. Motrin 800 mg, a trade name for ibuprofen, is a dangerous drug within the meaning of Business and Professions Code section 4022, in that it requires a prescription under federal law.

7. Ramsey Bakr testified credibly that the burn injuries and skin graft surgeries resulted in pain that often was not controlled by the medications that were prescribed for him. Respondent also believed that his son's pain was not adequately controlled by the medication.

8. On June 5, 2013, respondent called Dr. Grossman's office and requested a refill of the Norco. Instead, Mr. Richards approved a prescription for tramadol, a shortened reference to tramadol hydrochloride, for the quantity of 50 tablets. According to respondent,

1 On the record at the hearing, Ramsey Bakr waived his rights to privacy and confidentiality of his medical information.

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he asked for a higher quantity to avoid having to call for refills, and it was approved. According to Mr. Richards, only 50 tablets were authorized. Respondent prepared a written telephonic prescription, indicating the quantity was 100 tablets. The prescription for 100 tablets oftramadol hydrochloride was filled that day at the Costco pharmacy. In that conversation Mr. Richards also offered to refer Ramsey to a pain management specialist. Mr. Richards testified that Dr. Grossman's office was able to manage a patient's acute pain, but that continued use of narcotics for pain management was outside of their expertise.

9. Ramsey Bakr had suffered a prior injury or illness that resulted in tinnitus, ringing in the ear. Tramadol has a !mown side effect of tinnitus, and Ramsey Bakr experienced that side effect, and migraines, when he took the tramadol.

10. The next day, June 6, 2013, respondent called Dr. Grossman's office and requested a prescription for Norco. He spoke to Claudia Lopez, a licensed vocational nurse. Ms. Lopez conferred with Mr. Richards about the request. The ensuing events were the subject of contested testimony.

11. According to Mr. Richards and Ms. Lopez, approval was given for a prescription ofMotrin, 800 mg, quantity 40 tablets. According to respondent, he asked for a higher quantity to avoid having to call for refills, and approval was given for a prescription ofMotrin, 800 mg, quantity 120 tablets. Respondent prepared a written telephonic prescription, indicating the quantity was 120 tablets. The prescription for 120 tablets of Motrin 800 mg was filled that day at the Costco pharmacy.

12. Respondent was concerned that the Motrin would not be effective, for two stated reasons. First, he believed that Ramsey's pain was of a magnitude beyond the effectiveness ofMotrin. Second, he was concerned that the anti-inflammatory properties of Motrin would inhibit the healing process of Ramsey's wounds and condition.

13. In the same telephone conversation on June 6,.2013, respondent requested a prescription for Norco. According to Mr. Richards and Ms. Lopez, no approval was given for a prescription of Norco. Mr. Richards testified credibly that he refused the request because there would have been tablets remaining from the prior prescription for Percocet ( on May 31, 2013, quantity 40, with instructions to take one pill every six hours as needed for pain; see Factual Finding 5).

14. According to respondent, approval was given for a prescription ofNorco, quantity 60 tablets, with one refill. Respondent prepared a written telephonic prescription that was filled that day at the Costco pharmacy. The prescription number assigned was 1098609. According to Costco records, the Motrin and Norco were picked up at the same time, 17:38, on June 6, 2013. The electronic records also confirm that the first Norco prescription on May 31, 2013, was for quantity 40, and the June 6, 2013 prescription for Norco, quantity 60, with two refills, was authorized by Claudia. (Exhibit 6, pages AGO-

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0070 and AGO-0057, respectively.) Respondent processed and received a refill of this prescription for Norco on June 17, 2013.

15. Ramsey Bakr also testified about the tramadol and Norco prescriptions, but his testimony was not credible. He testified that he told the nurse or physician assistant about his pain level and the side effects of the tramadol, and that Mr. Richards offered to write another prescription for pain medication, either oxycodone or hydrocodone, with two refills, but also "to just work through it." Ramsey testified that Mr. Richards wrote out the pain medication prescription and gave it to his father. This testimony is contrary to the more credible evidence from respondent, Mr. Richards and Ms. Lopez that conversations about pain medications on June 5 and 6, 2013, were by telephone and did not include Ramsey Bakr.

16. On June 14, 2013, Mr. Richards learned that Ramsey was taking Percocet, Norco and other medications from a physical therapist who was treating Ramsey. Mr. Richards researched and found Ramsey's prescriptions on a database. Mr. Richards confirmed that Dr. Grossman had not authorized additional Norco prescriptions beyond the one given on May 17, 2018. Mr. Richards informed Barry Meizel, Costco Regional Pharmacy Supervisor, of the improper Norco prescription, by telephone on June 17 and by email on June 18, 2013. In the June 18, 2013 email, Mr. Richards included that he overheard Claudia on the telephone explain the denial of the Norco to respondent. (Exhibit 6, p. AGO-0051.)

17. On June 19, 2013, Mr. Meizel and warehouse manager Bob Holden spoke with respondent and informed him that Mr. Richards and Ms. Lopez denied authorizing the Norco prescription on June 6, 2013. Respondent replied that they must have confused that conversation with another, and that Mr. Richards and Ms. Lopez had authorized the Norco on June 6. Mr. Meizel called Mr. Richards and placed him on a speakerphone. Mr. Richards stated that respondent called and requested Norco, which was denied, but Motrin was approved. As the call to Mr. Richards on June 19, 2013 concluded, respondent again stated that Mr. Richards must be confused. Although asked, respondent offered no other explanation to his supervisor. Respondent was placed on suspension by Costco that same day, and was terminated by Costco on June 26, 2013. After the meeting, Mr. Meizel called Mr. Richards again. He also spoke with Ms. Lopez, who denied that she had authorized the Norco prescription on June 6, 2013.

18. Mr. Meizel reported the theft or loss of controlled substances to the Drug Enforcement Administration. He was contacted by the Board on July 12, 2013, with a request for information. Mr. Meizel sent a complaint letter to the Board, received on August 5, 2013. Investigation of the complaint was assigned to Sarah Bayley, who inspected the Costco pharmacy on September 9, 2013, and gathered various documents and statements. At her request, Mr. Richards provided a statement, dated September 23, 2013, which indicated, among other things: the tramadol prescription on June 5, 2013, was for quantity 50, and not

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quantity 100, as filled by respondent; the June 6, 2013 Motrin prescription was for quantity 40, and not quantity 120, as filled by respondent; and the Norco request on June 6, 2013, was denied, the increase in quantity from 40 to 60 was not authorized, and the refill on June 17, 2013, was not authorized. In response to Inspector Bayley's request, on June 26, 2016, Ms. Lopez wrote a statement that she had denied respondent's request for Norco on June 6, 2013.

19. At the hearing, respondent testified that although Percocet is a stronger pain medication, he requested Norco over the phone because Percocet requires a hard copy prescription signed by the doctor and physically delivered to the pharmacy. After his request was refused and tramadol was prescribed, Ramsey took a few tablets and then stopped due to the side effect of ringing in his ears and migraines. Testimony from Ramsey Bakr confirmed the issues with taking the tramadol.

20. Respondent testified that when he called and again requested Norco on June 6, he was speaking with Claudia [Lopez] and overheard a voice in the background say "Yeah, yeah give it to him." Respondent testified that he wrote the Norco prescription, read it back to Claudia, and they agreed Ramsey would try the Motrin and, if it did not help, he would take the Norco. Respondent testified that on June 6 he wrote notes on the back of the telephone prescription for the Norco related to the conversation with Claudia, and the instructions to try Motrin and, if ineffective, to use the Norco.

21. At the hearing, respondent testified that the June 6 handwritten prescription for Norco "did not come up in the interview" with Mr. Meizel on June 19, 2013; only that the prescription was filled. Respondent also testified that he did not think these notes were important at the time; rather it was more significant that he had received the prescription. This testimony is inherently unbelievable, as the very issue at the meeting with Mr. Meizel was whether respondent had spoken to Claudia and received authority for the June 6 Norco prescription.

22. The handwritten telephone prescription for Norco on June 6 is not in evidence.2 The handwritten telephone prescription for tramadol on June 5 is in evidence and it notes "Kurt" on the front. (Exhibit 7, p. AGO-0072.) Respondent testified that he received telephone authorization from Kurt, but did not realize at the time that it was Mr. Richards. The handwritten telephone prescription for Motrin on June 6 is in evidence and it notes "Claudia" on the front. (Exhibit 7, p. AGO-0074.) Respondent testified that he received the telephone authorization from Claudia. The Costco records provided by Mr. Meisel to the Board did not include the June 6 Norco prescription that was handwritten by respondent.

2 The first written evidence of the Norco prescription on June 6 is the printout of the electronic prescription from Costco records ( exhibit 6, p. AGO-0057), with the entry that it was authorized by Claudia.

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23. Respondent's testimony that he received telephone authorization for Norco on June 6, 2013, is not credible, based on other factors from the totality of the evidence. Among the factors considered in making this determination are: in statements as early as June 17 and 18, 2013, Mr. Richards informed Mr. Meizel that he did not authorize the Norco prescription on June 6; Mr. Richards repeated this denial in a phone conversation with Mr. Meizel and respondent on June 19; respondent made no mention of notes on the handwritten prescription when he met with Mr. Meizel on June 19, when the handwritten prescription presumably could have been retrieved and reviewed; Claudia Lopez denied giving authorization in her phone conversation with Mr. Meizel on June 19; Mr. Richards denied giving authorization for Norco in his statement to Inspector Bayley on September 23, 2013; Mr. Richards and Ms. Lopez denied giving authorization for Norco in their statements later to Inspector Bayley on June 26, 2015; in their testimony at the hearing, Mr. Richards and Dr. Grossman denied authorizing the Norco on June 6 and any later refill; and, if Ramsey Bakr took the Percocet, as prescribed on May 31, 2013, quantity 40 tablets, one every six hours, there would have been at least 12 tablets remaining as of June 6, 2013. Respondent was prompted for any further information during his meeting with Mr. Meizel on June 19, and would have been motivated to be truthful so as to keep his job. Yet he made no mention of notes on the back of the handwritten prescription. Similarly, in corresponding with Inspector Bayley, respondent made no mention of notes on the back of the handwritten prescription. Nor did he seek to obtain the prescription by subpoena for use at the hearing. 3

Erroneous or Uncertain Prescription: Warafarin, 2015

24. On March 24, 2015, respondent was working as a pharmacist at a CVS pharmacy in Porter Ranch. He filled a prescription for patient RC for W arfarin 5 mg. The prescriber included the following erroneous instructions on the prescription: "1/12 tablet every other day 1 tad [sic] every other [sic] day Once a day Orally 30 day(s)." (Exhibit 11, p. AGO·0106.)

25. Respondent did not call to verify or clarify the directions prior to filling the prescription. On the prescription bottle respondent included instructions to the patient to take "½ tablet" every other day alternating with one tablet every other day as directed. (Exhibit 11, p. AGO.0127.) The correct instructions would have been for the patient to take one and one•half (1 ½) tablet every other day alternating with one tablet every other day. 4

3 The credibility determination was informed by reference to Evidence Code sections 780, listing factors to assess credibility, and 412, to the effect that, if a party introduces weaker and less satisfactory evidence when it could have produced stronger evidence, the evidence offered may be viewed with distrust.

4 From the totality of the evidence, specifically the fractions used, it is inferred that the prescriber wrote "1/12" while intending to write "I and 1/2," which respondent erroneously interpreted as "½."

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26. The patient did not follow the instructions written by respondent. The patient contacted her physician concerning the error. The patient later brought a lawsuit against the physician and CVS, which was settled. The Board was notified of the settlement.

27. The W arfarin was a small scored tablet. It would have been difficult to impossible for a Warfarin tablet to be split into twelfths for administration as erroneously written by the prescriber. Nor would that small amount be a therapeutic dose. According to Board Inspector Ann Yamada, the prescription was clearly erroneous and the directions were clearly incorrect. A pharmacist receiving the erroneous prescription could not dispense it with the instructions as written and must contact the prescriber to get clarification and authorization to change the instructions. Respondent testified similarly that a W arfarin tablet could not be cut into a I/12th dose, that the prescription was uncertain, and that he should have called the prescriber.

28. Respondent spoke telephonically with Inspector Yamada on May 31, 2018, and sent her a written statement dated June 2, 2018 (exhibit 12). His testimony at the hearing was consistent with these earlier statements. At the time of filling this prescription, respondent stated that the pharmacy was overworked and understaffed. The pharmacist in charge was on maternity leave and, although prescription volume increased, the budget was reduced for technician and clerical staff. Respondent spoke with his supervisor about the stress on the staff and complaints of delays by customers, and was told that the scheduling tool used by CVS would correct the situation, but it did not. Respondent described the work situation as unhealthy.

29. Respondent called and left several messages for the patient but did not receive any reply. At the hearing, respondent acknowledged making the error in the written instructions and stated his regret for the mistake.

30. On May 31, 2018, Inspector Yamada issued a notice to respondent of a failure to follow pharmacy laws, referencing California Code of Regulations, title 16, sections 1716 and 1761, subdivision (a), discussed in more detail below. She requested any additional information. It appears that respondent's June 2, 2018 statement was sent in response.

Respondent's Background, Training, Experience and References

31. Respondent was born in Egypt, and came to the United States at age six and stayed while his father pursued a Ph.D. He returned to Egypt in about 1976, and came back to the United States in 1989. Respondent earned a Bachelor degree in pharmacy and pharmaceutical science in 1982 from Alexandria University. He received two Master's degrees from the High Institute of Public Health, in public health in 1986, and in micro biology in 1998. Respondent has been married for 32 years, and has four children: Ramsey,

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age 30; another son, age 28; and two daughters, ages 26 and 24. The two daughters presently live with respondent.

32. From 1989 to 1990, respondent worked as an intern pharmacist at Save-On pharmacy. He was licensed in 1990, and worked at Sav-On as a staff pharmacist for two and one-half years, and then became a pharmacy manager for over two years. For two years starting in August 1994, respondent was the pharmacy director at the White Memorial Medical Center pharmacy. From August 1996 to February 1999, respondent was the hospice pharmacy manager for Home Pharmacy of California. In this position, he worked with physicians and case managers in pain management for terminally ill patients, and developed some expertise in pain management. Respondent worked for Rite Aid Corporation for over 10 years, first as a pharmacy manager from February 1999 to March 2001, and then as a pharmacy district manager from March 2001 to November 2010. Respondent was an executive team leader for Target Corporation from November 2010 to April 2012. Respondent has worked as a per diem pharmacist for Life Care Solutions from June 2008 to January 2016, while he was also working at other jobs. Respondent was a pharmacy director at Costco from August 2012 to June 2013. He has worked as a pharmacist for CVS Caremark, from July 2013 to the present, sometimes full-time and sometimes part-time. From October 2016 to the present, respondent has worked as a pharmacy supervisor for the Los Angeles County Department of Health Services. The first six months was on a contract basis, and he became a full-time employee thereafter. In many of these positions, respondent supervised other pharmacists, technicians and clerks. Included in his responsibilities was quality assurance and compliance with pharmacy laws and policies and employer policies.

33. In his present position with Los Angeles County, respondent supervises other pharmacists and is involved in creating, revising and implementing policies and procedures for the Department. Respondent is supervised by Romina Panoussi, Pharm.D., in the Lancaster office. Respondent informed Ms. Panoussi of the allegations against him, and testified that she was very supportive of him, as she had already seen his performance, which was better than that of prior employees. Ms. Panoussi wrote a letter of support confirming that respondent informed her of the allegations, that he works at a high level, has exceeded her expectations, and that he has acted as an ethical and competent pharmacist. (Exhibit F.) Two performance evaluations ofrespondent by Ms. Panoussi were submitted in evidence. (Exhibits D and E.) The evaluations confirm that respondent met expectations in all subject areas. Exhibit F also contains character reference letters from nine other authors. The letters and evaluations were received in evidence as administrative hearsay. 5 Several of the authors

5 The term "administrative hearsay" is a shorthand reference to the provisions of Government Code section 11513, subdivision (d), to the effect that hearsay evidence that is objected to, and is not otherwise admissible, may be used to supplement or explain other evidence but may not, by itself, support a factual finding. It may be combined with other evidence to provide substantial evidence sufficient to support a factual finding. (Komizu v. Gourley (2002) 103 Cal.App.4th 1001.)

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worked with respondent in the jobs noted above and they confirm their experience with respondent and many of his job duties and responsibilities. To the extent these authors offer examples and opinions of respondent's good character and reputation, there was no direct evidence for such information to serve as explanation or supplementation. Respondent testified that he did not inform the other letter writers of allegations that he filled unauthorized prescriptions.

34. Respondent has been involved in community activities that encourage children and people to enter the healthcare profession, focusing on pharmacy. He has spoken at his children's schools, has hosted school visits to pharmacies where he has worked, has assisted in school science fairs, and has been a representative at health fairs to review medications and answer questions.

Costs

35. Complainant incurred costs for the investigation ($6,914) and enforcement ($8,177.50), for a totaLo£$15,09-1-.50.-Inspector-Bayley and Inspector Yamada submitted certifications describing their tasks, hours and billing rates, including 50.75 hours for Inspector Bayley, at rates of $102 or $121 per hour, and 12.75 hours for Inspector Yamada, at the rate of $121 per hour. Department of Justice billing summaries described the tasks that totaled 44. 75 hours of work by Deputy Attorney Felix and her supervisor, and 4.75 hours of work by a paralegal. The costs are found to be reasonable.

LEGAL CONCLUSIONS

Based upon the foregoing factual findings, the Administrative Law Judges makes the following legal conclusions:

1. In this proceeding based on an accusation against a licensee, the burden of proof is on complainant to establish the alleged violations by "clear and convincing proof to a reasonable certainty." (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853.) This means the burden rests on complainant to establish the charging allegations by proof that is clear, explicit and unequivocal-so clear as to leave no substantial doubt, and sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Marriage of Weaver (1990) 224 Cal.App.3d 478.)

2. Under Business and Professions Code section 4300, subdivision (a), the Board may suspend or revoke a license or registration for violation of statutes or regulations.

3. The requirements for a prescription to be filled are found in numerous statutes and regulations, only some of which are relevant to this matter.

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4. In the First Cause for Discipline in the First Amended Accusation, complainant alleged that respondent altered four prescriptions between June 5 and 17, 2013, in violation of statutes referenced below. There were three relevant prescriptions, not four: tramadol, for increasing the quantity from 50 to 100 tablets; Motrin, for increasing the quantity from 40 to 120 tablets; and Norco, for indicating that there was authorization, including one refill, when there was not. The Norco prescription was later refilled, but the refill is not an example of a separate, altered prescription.

5. Business and Professions Code section 4324, states:

( a) Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.

(b) Every person who has in his or her possession any drugs secured by a forged prescription shall be punished by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.

6. Under Business and Professions Code section 4301, the Board shall take action against any licensee who is guilty of unprofessional conduct, which includes the following:

(f) The commission of any act involving moral turpitude, dishonesty, fraud, deceit, or corruption, whether the act is committed in the course of relations as a licensee or otherwise, and whether the act is a felony or misdemeanor or not.

(g) Knowingly making or signing any certificate or other document that falsely represents the existence or nonexistence of a state of facts. [,0 ... [ill

G) The violation of any of the statutes of this state, or any other state or of the United States regulating controlled substances and dangerous drugs.

7. Complainant established by clear and convincing evidence that there is cause to impose discipline on respondent's license for his violation of Business and Professions

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Code, sections 4324 and 4301, subdivisions (f), (g) and G), by altering prescriptions, for the reasons set forth in Factual Findings 3 through 23.

8. In the Second Cause for Discipline in the First Amended Accusation, complainant alleged that respondent furnished a controlled substance, Norco, and other dangerous drugs without a valid prescription, in violation of the statutes referenced below.

9. Business and Professions Code section 4059 states, in pertinent part:

(a) A person may not furnish any dangerous drug except upon the prescription of a physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor pursuant to Section 3640.7 .. ,,

10. Dangerous drugs are defined in Business and Professions Code section 4022. The following are dangerous drugs: hydrocodone bitrate and acetaminophen, also known as Norco; tramadol hydrochloride; and Motrin 800 mg. Respondent furnished, or provided, these dangerous drugs to his son without valid prescriptions.

11. Complainant established by clear and convincing evidence that there is cause to impose discipline on respondent's license for his violation of Business and Professions Code, section 4059, by furnishing dangerous drugs without a valid prescription, for the reasons set forth in Factual Findings 3 through 23.

12. In the Third Cause for Discipline in the First Amended Accusation, complainant alleged that respondent illegally obtained or possessed Norco, a controlled substance, without a valid prescription, in violation of Business and Professions Code section 4060.

13. Business and Professions Code section 4060 makes no reference to obtaining a drug improperly; therefore, that aspect of the allegation was not proven. Business and Professions Code section 4060 states, in pertinent part:

A person shall not possess any controlled substance, except that furnished to a person upon the prescription of a physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor pursuant to Section 3640.7, ... [or] a physician assistant pursuant to Section 3502.1 .... This section does not apply to the possession of any controlled substance by a manufacturer, wholesaler, ... pharmacy, pharmacist, physician, ... if in stock in containers correctly labeled with the name and address of the supplier or producer.

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14. Respondent contends that he is not liable under Business and Professions Code section 4060 because he is a pharmacist who possessed the Norco under a prescription from a physician assistant. This contention is rejected, as the Norco prescription was not issued by Mr. Richards or anyone else treating respondent's son. It was fabricated by respondent.

15. Complainant established by clear and convincing evidence that there is cause to impose discipline on respondent's license for violation of Business and Professions Code section 4060, for illegally obtaining Norco, a controlled substance, without a valid prescription, for the reasons set forth in Factual Findings 3 through 23.

16. In the Fourth Cause for Discipline in the First Amended Accusation, complainant alleged that, with reference to the erroneous W arfarin prescription, respondent committed unprofessional conduct by violating regulations and a statute by deviating from the requirements of a prescription, filled a prescription that was uncertain and ambiguous and/or had erroneous instructions, and failed to contact the prescriber for clarification.

17. Under Business and Professions Code section 4301, acts of unprofessional . conduct include:

(o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term of this chapter or of the applicable federal and state laws and regulations governing pharmacy, including regulations established by the board or by any other state or federal regulatory agency.

18. California Code of Regulations, title 16, section 1716 states, in part:

Pharmacists shall not deviate from the requirements of a prescription except upon the prior consent of the prescriber or to select the drug product in accordance with Section 4073 of the Business and Professions Code ....

19. California Code of Regulations, title 16, section 1761 states, in part:

(a) No pharmacist shall compound or dispense any prescription which contains any significant error, omission, irregularity, uncertainty, ambiguity or alteration. Upon receipt of any such prescription, the pharmacist shall contact the prescriber to obtain the information needed to validate the prescription.

20. Complainant established by clear and convincing evidence that there is cause to impose discipline on respondent's license for violation of Business and Professions Code,

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section 4301, subdivision ( o ), and California Code of Regulations, title 16, sections 1716 and 1761, for unprofessional conduct in deviating from the requirements ofa prescription except upon the prior consent of the prescriber, and for dispensing a prescription which contained a significant error, an uncertainty, and an ambiguity, without contacting the prescriber, for the reasons set forth in Factual Findings 24 through 30.

Costs

21. Under Business and Professions Code section 125.3, the Board may request the administrative law judge to direct a licentiate found to have committed violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. These reasonable costs are $15,091.50, as set forth in Factual Finding 35.

22. In Zuckerman v. State Board of Chiropractic Examiners (2002) 29 Cal.4th 32, the Supreme Court rejected a constitutional challenge to a cost recovery provision similar to Code section 125.3. In so doing, however, the Court directed the administrative law judge and the agency to evaluate several factors to ensure that the cost recovery provision did not deter individuals from exercising their right to a hearing. Thus, the Board must not assess the full costs where it would unfairly penalize the respondent who has committed some misconduct, but who has used the hearing process to obtain the dismissal of some charges or a reduction in the severity of the penalty. The Board must consider a respondent's subjective good faith belief in the merits of his or her position and whether the respondent has raised a colorable challenge; the Board must consider a respondent's ability to pay; and the Board may not assess disproportionately large investigation and prosecution costs when it has conducted a disproportionately large investigation to prove that a respondent engaged in relatively innocuous misconduct. (Ibid. at p. 45.)

23. Consideration of these factors does not support any reduction in costs.

Discipline

24. Under California Code of Regulations, title 16, section 1760, the Board developed A Manual of Disciplinary Guidelines and Model Disciplinary Orders (rev. 2/2017) (Guidelines). The Guidelines recommend ranges of discipline for certain violations. Under the Guidelines, the Board recognizes that individual cases may necessitate a departure from the Guidelines. Sections of the Guidelines include factors to be considered in

. determining penalties, rehabilitation evidence, and recommended penalties for the proven violations.

25. To determine whether the minimum, maximum, or an intermediate recommended penalty is to be imposed in a given case, the following are the relevant factors to consider: actual or potential harm to the public or to any consumer, prior disciplinary

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record or warnings, including citations, number and/or variety of current violations, nature and severity of the offenses, aggravating evidence, mitigating evidence, rehabilitation evidence, time passed since the offenses, whether the conduct was intentional or negligent, and whether there was financial benefit to the respondent from the misconduct.

26. Evidence a respondent may submit to demonstrate rehabilitative efforts and competency may include written-statements-from-petsons-in-positions-o:f'-authority-whon-the-job knowledge of the respondent's current competence in the practice of pharmacy including the period of time and capacity in which the person worked with the respondent.

27. The Guidelines divide violations into four categories for purposes of setting forth recommended minimum and maximum disciplinary outcomes. Category I discipline is recommended for violations which are relatively minor. Category IV violations are substantial. The violations established in this matter are in Category III. The minimum recommended discipline for Category III violations is revocation stayed, 90 days actual suspension for a pharmacist, and three to five years' probation, with standard terms and conditions and optional terms and conditions as appropriate. The recommended maximum discipline is revocation.

28. Respondent presents a curious scenario for purposes of determining the appropriate level of discipline. To reference some of the relevant factors, there was potential harm to the public or customers, but no actual harm was proven. There has been no prior discipline. There are several present violations, in two scenarios-treatment of respondent's son's pain after significant injuries, and confusing directions for use of the drug Warfarin. Respondent contended that the charge related to Warfarin was added by complainant because the charges related to respondent's son were so old that discipline might not be imposed. This contention is rejected. The Board was apprised of a settlement regarding the Warfarin prescription, investigated, and amended the accusation. The first series of events occurred in June 2013, and the Warfarin incident in March 2015. Respondent acknowledges that he made an error in the instructions for the W arfarin. While his act in 2015 was negligent, his acts in 2013 were intentional.

29. Some sympathy would be expected for the situation where respondent's son is injured in an accident and is experiencing severe and protracted pain. This type of situation . might help to explain, but not excuse, a lapse in professional judgment leading to, in a two­day span, increasing the number of tablets in two prescriptions and creating another prescription. There is a place in the law for compassion. In his dissent in DeShaney v. Winnebago County Social Services Department (1989) 489 U.S. 189,213, Justice Harry Blackmun stated: "[C]ompassion need not be exiled from the province of judging .... " Writing for the majority, Chief Justice William Rehnquist agreed with that sentiment, stating: "Judges and lawyers, like other humans, are moved by natural sympathy in a case like this .... " (Ibid. at p. 202.)

o-have<------­

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OoouSlgned by:

V~J, b. ksl.)NI\~ 0BP0R>~NMAN

30. Respondent, however, is unapologetic for his actions in 2013. He contends that everyone else has a faulty memory and is confused. The clear and convincing evidence is to the contrary. Respondent's failure to aclmowledge and accept responsibility for the events are aggravating factors. Similarly, but to a lesser degree, with respect to the Warfarin, respondent spreads the blame beyond himself, to include his employer's "unhealthy" work environment. In Singh v. Davi (2012) 211 Cal.App.4th 141, 149, the court focused on the rehabilitation of an applicant for a real estate license who had been convicted of grand theft by false pretenses. The focus was on respondent's change in attitude since the conviction occurred, to assess whether the criminal conduct was likely to be repeated. The court emphasized that the applicant demonstrated a change in attitude, including accepting responsibility and exhibiting remorse. In the present case, respondent committed dishonest acts, has not accepted responsibility and has not expressed any remorse. It cannot be concluded that he would not repeat his misconduct under unusual or stressful circumstances.

31. As stated in Business and Professions Code section 4001.1: "Protection of the public shall be the highest priority for the California State Board of Pharmacy in exercising its licensing, regulatory, and disciplinary functions .... " Considering all of the circumstances, revocation ofrespondent' s license is necessary to protect the public.

ORDER

Pharmacist license number RPH 43645 issued to respondent Medhat Helmy Bakr is revoked. Respondent shall pay to the Board its costs of investigation and prosecution in the amount of$15,091.50. Respondent shall make said payments on a schedule to be determined by the Board.

DATED: October 11, 2018

Administrative Law Judge Office of Administrative Hearings

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XAVIER BECERRA Attorney General of California THOMAS L. RINALDI Supervising Attorney General CRISTINA FELIX Deputy Attorney General State Bar No. 195663

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Sacramento, CA 94244-2550 Telephone: (213) 269-6321 Facsimile: (213) 897-2804

Attorneys for Complainant

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

MEDHATHELMYBAKR 11993 Shosone Ave. · Granada Hills, CA 91344

Pharmacist License No. RPH 43645

Respondent.

Case No. 5891

FIRST AMENDED ACCUSATION

Complainant alleges:

PARTIES

1. Virginia Herold (Complainant) brings this First Amended Accusation solely in her

official capacity as the Executive Officer of the Board of Pharmacy, Department of Consumer

Affairs.

2. On or about August 1, 1990, the Board of Pharmacy issued Phannacist License

Number RPH 43645 to Medhat Helmy Bakr (Respondent). The Pharmacist License was in full

force and effect at all times relevant to the charges brought herein and will expire on July 31,

2020, unless renewed.

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JURISDICTION

3. This First Amended Accusation is brought before the Board of Pharmacy (Board),

Department of Consumer Affairs, under the authority of the following laws. All section

references are to the Business and Professions Code unless otherwise indicated.

4. Section 43 00 of the Code provides in pertinent part, that every license issued by the

Boards is subject to discipline, including suspension or revocation.

5. Section 4300.1 of the Code provides:

The expiration, cancellation, forfeiture, or suspension of a board-issued license by

operation of law or by order or decision of the board or a court of law, the placement of a license

on a retired status, or the voluntary surrender of a license by a licensee shall not deprive the board

of jurisdiction to commence or proceed with any investigation of, or action or disciplinary

proceeding against, the licensee or to render a decision suspending or revoking the license.

6. Section 4301 of the Code states in _pertinent part:

'1The board shall take action against any holder of a license who is guilty of unprofessional

conduct or whose license has been issued by mistake. Unprofessional conduct shall include, but is

not limited to, any of the following:

(±) The commission of any act involving moral turpitude, dishonesty, fraud, deceit, or

corruption, whether the act is committed in the course ofrelations as a licensee or otherwise, and

whether the act is a felony or misdemeanor or not.

(g) Knowingly making or signing any certificate or other docun1ent that falsely

represents the existence or nonexistence of a state of facts.

G) The violation of any of the statutes of this state, or any other state or of the United

States regulating controlled substances and dangerous drugs.

(o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the

violation of or conspiring to violate any provision or term of this chapter or of the applicable

federal and state laws and regulations governing pharmacy, including regulations established by

the board or by any other state or federal regulatory agency.

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7. Section 4022 of the Code states:

"'Dangerous drug' or 'dangerous device' means any drug or device unsafe for self-use in

humans or animals, and includes the following:

(a) Any drug that bears the legend: 'Caution: federal law prohibits dispensing without

prescription,' 'Rx only,' or words of similar import

(b) Any device that bears the statement: 'Caution: federal law restricts this device to sale by '

or on the order of a _____ ,' 'Rx only,' or words of similar import, the blank to be filled in

with the designation of the practitioner licensed to use or order use of the device.

( c) Any other drug or device that by federal or state law can be lawfully dispensed only on

prescription or furnished pursuant to Section 4006. 11

8. Section 4059 of the Code states, in pertinent part,

(a) A person may not furnish any dangerous drug except upon the prescription of a

physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor pursuant to Section

3 640. 7. A person may not furnish any dangerous device, except upon the prescription of a

physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor pursuant to Section

3640.7.

"

9. ,section 4060 of the Code states:

"A person shall not possess any controlled substance, except that furnished to a person

upon the prescription of a physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic

doctor pursuant to Section 3640. 7, or furnished pursuant to a drug order issued by a certified

nurse-midwife pursuant to Section 2746.51, a nurse practitioner pursuant to Section 2836.1, a

physician assistant pursuant to Section 3502.1, a naturopathic doctor pursuant to Section 3640.5,

or a pharmacist pursuant to Section 4052.1, 4052.2, or 4052.6. This section does not apply to the

possession of any controlled substance by a manufacturer, wholesaler, third-party logistics

provider, pharmacy, pharmacist, physician, podiatrist, dentist, optometrist, veterinarian,

naturopathic doctor, certified nurse-midwife, nurse practitioner, or physician assistant, if in stock

in containers correctly labeled with the name and address of the supplier or producer.

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This section does not authorize a certified nurse-midwife, a nurse practitioner, a physician

assistant, or a naturopathic doctor, to order his or her own stock of dangerous drugs and devices."

10. Section 4324 of the Code states:

"(a) Every person who signs the name of another, or of a fictitious person, or falsely

makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription

for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment

in the state prison, or by imprisonment in the county jail for not more than one year.

(b) Every person who has in his or her possession any drugs secured by a forged

prescription shall be punished by imprisonment in the state prison, or by imprisonment in the

county jail for not more than one year."

REGULATORY PROVISIONS

11. California Code of Regulations, title 16, section 1716 states:

"Pharmacists shall not deviate from the requirements of a prescription except upon the prior

consent of the prescriber or to select the drug product in accordance with Section 4073 of the

Business and Professions Code ... "

12. California Code of Regulations, title 16, section 1761 states:

"(a) No pharmacist shall compound or dispense any prescription which contains any

significant error, omission, irregularity, unce1iainty, ambiguity or alteration. Upon receipt of any

such prescription, the pharmacist shall contact the prescriber to obtain the information needed to

validate the prescription."

COST RECOVERY

13. Section 125.3 of the Code states, in pertinent part, that the Board may request the

administrative law judge to direct a licentiate found to have committed a violation or violations of

the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

enforcement of the case.

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DRUGS

14. "Norco," a brand of hydrocodone bitartrate and acetaminophen, is a Schedule III

controlled substance as designated by Health and Safety Code section 11056 (e)(4).

15. "Ultram," a trade name for tramadol hydrochloride, is a dangerous drug within the

meaning of Business and Professions Code section 4022, in that it requires a prescription under

federal law.

16. "Motrin 800 m,g" a trade name for ibuprofen, is a dangerous drug within the meaning

of Business and Professions Code section 4022, in that it requires a prescription under federal

law.

17. "Warfarin," is an anticoagulant used to prevent heart attacks, strokes, and blood clots.

FACTS- NORCO PRESCRIPTIONS

18. On or about June 6, 2013, Respondent contacted Physician Assistant R.'s 1 office to

obtain a refill of prescription number RX 1096113 issued to Respondent's son for Norco.

Physician Assistant R. would not authorize the refill and instead instructed his staff to provide a

prescription for Motrin. Rather than fill the prescription for Motrin, Respondent altered

prescription number RX 1096113 to add refills, increase the amount of tablets from 40 to 60, and

generated prescription number R,,""{ 1098609 without authorization. Respondent then proceeded

to refill Norco for his son on two separate occasions pursuant to the altered prescription.

19. On June 5, 2013, Respondent filled prescription number RX 1098436 for Tramadol in

the ammmt of 100 tablets despite the fact that the prescription only allowed 50 tablets to be

dispensed.

20. On June 6, 2013, Respondent filled prescription number R._,,""{ 1098611 in the amount

of 120 tablets of ibuprofen 800 mg despite the fact that the prescription only allowed 40 tablets to

be dispensed.

///

1 Initials are used for purposes of privacy. The name will be provided upon receipt of a Request for Discovery.

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FIRST CAUSE FOR DISCIPLINE

(Forged Prescriptions)

21. Respondent is subject to disciplinary action under sections 4324 and 4301

subdivisions (f), (g), and G), in that between June 5 to June 17, 2013, he altered four prescriptions

which he proceeded to fill as more specifically set forth above in paragraphs 18 tln·ough 20.

SECOND CAUSE FOR DISCIPLINE

(Furnishing Controlled Substances and

Dangerous Drugs Without a Valid Prescription)

22. Respondent is subject fo disciplinary action under section 4059, in that he furnished a

controlled substance, Norco, and other dangerous drugs without valid prescriptions, as more

specifically set forth above in paragraphs 18 through 20.

THIRD CAUSE FOR DISCIPLINE

(Illegally Obtained or Possessed Controlled Substances and Dangerous Drugs) .

23. Respondent is subject to disciplinary action under section 4060, in that he obtained

and/or possessed a controlled substance, Norco, without valid prescriptions, as more specifically

set forth above in paragraphs 18 through 20.

FACTS- WARFARIN PRESCRIPTION

24. On March 24, 2015, while working at CVS Phannacy located at Porter Ranch,

Respondent dispensed an erroneous and uncertain prescription for Warfarin 5 mg. Patient RC' s

prescriber had prescribed RC warfarin with erroneous directions to take 1/12 tablet every other

day alternating with 1 tablet every other day, instead of 1 ½ tablets every other day alternating

with 1 tablet every other day. Respondent dispensed the medication with directions to take ½ a

tablet by mouth every other day, alternating with 1 tablet every other day.

25. Respondent did not call the prescriber to verify the directions of the prescription prior

to filling the prescription.

Ill

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FOURTH CAUSE FOR DISCIPLINE

(Filling of Erroneous or Uncertain Prescriptions)

26. Respondent is subject to disciplinary action under section under sections 4300 and

4301,, subdivision (o), for unprofessional conduct, for violating California Code of Regulations,

title 16, sections 1716 and 1761, subdivision (a), in that Respondent deviated from the

requirements of a prescription, filled and dispensed a prescription which was uncertain and

ambiguous and/or had erroneous directions, and failed to contact the prescriber for clarification

prior to filling the prescription, as more specifically set forth above in paragraphs 24 and 25.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board of Pharmacy issue a decision:

1. Revoking or suspending Pharmacist License Number RPI-I 43645, issued to Medhat

Helmy Bakr;

2. Ordering Medhat Helmy Bakr to pay the Board of Pharmacy the reasonable costs of

the investigation and enforcement of this case, pursuant to section 125 .3; and,

3. Taking such other and fmther action as deemed necessary and proper.

el21-/t£. . ;~~ DATED:

VIRGINIA HEROLD Executive Officer Board of Pharmacy Department of Consumer Affairs State of California Complainant

LA201660l667 12414227 4.doc

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XAVIER BECERRA Attorney General of California LINDA K. SCHNEIDER Senior Assistant Attorney General THOMAS RINALDI Supervising Deputy Attorney General State Bar No. 206911

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Sacramento, CA 94244-2550 Telephone: (213) 897-2541 Facsimile: (213) 897-2804

Attorneys for Complainant

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

MEDHAT HELMY BAKR 11993 Shosone Ave. Granada Hills, CA 91344

Pharmacist License No. RPH 43645

Respondent.

Case No. 5891

ACCUSATION

Complainant alleges:

PARTIES

1. Virginia Herold (Complainant) brings this Accusation solely in her official capacity

as the Executive Officer of the Board of Pharmacy, Department of Consumer Affairs.

2. On or about August I, 1990, the Board of Pharmacy issued Pharmacist License

Number RPH 43645 to Medhat Helmy Bakr {Respondent). The Pharmacist License was in full

force and effect at all times relevant to the charges brought herein and will expire on July 31,

2018, unless renewed.

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JURISDICTION

3. This Accusation is brought before the Board of Pharmacy (Board), Department of

Consumer Affairs, under the authority of the following laws. All section references are to the

Business and Professions Code unless otherwise indicated.

4. Section 4300 ofthe Code provides in pertinent part, that every license issued by the

Boards is subject to discipline, including suspension or revocation.

5. Section 4300.1 of the Code provides:

The expiration, cancellation, forfeiture, or suspension of a boar<l•issued license by operation

of law or by order or decision of the board or a court of law, the placement of a license on a

retired status, or the voluntary surrender of a license by a licensee shall not deprive the board of

jurisdiction to commence or proceed with any investigation of, or action or disciplinary

proceeding against, the licensee or to render a decision suspending or revoking the license.

6. Section 4301 of the Code states in pertinent part:

"The board shall take action against any holder of a license who is guilty of unprofessional

conduct or whose license has been issued by mistake. Unprofessional conduct shall include, but is

not limited to, any of the following:

11{f) The commission of any act involving moral turpitude, dishonesty, fraud, deceit, or

corruption, whether the act is committed in the course of relations as a licensee or otherwise, and

whether the act is a felony or misdemeanor or not.

"(g) Knowingly making or signing any certificate or other document that falsely represents

the existence or nonexistence of a state of facts.

"G) The violation of any of the statutes of this state, or any other state, or of the United

States regulating controlled substances and dangerous drugs.

11 ( o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the

violation of or conspiring to violate any provision or term of this chapter or of the applicable

federal and state laws and regulations governing pharmacy, including regulations established by

the board or by any other state or federal regulatory agency.

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7. Section 4022 of the Code states:

"Dangerous drug" or "dangerous device" means any drug or device unsafe for self.use in

humans or animals, and includes the following:

11(a) Any drug that bears the legend: "Caution: federal law prohibits dispensing without

prescription," "Rx only," or words of similar import.

11(6) Any device that bears the statement: "Caution: federal law restricts this device to sale

by or on the order of a _____ ," "Rx only, 11 or words of similar import, the blank to be filled

in with the designation of the practitioner licensed to use or order use of the device,

"(c) Any other drug or device that by federal or state law can be lawfully dispensed only on

prescription or furnished pursuant to Section 4006. '1

8. Section 4059 of the Code states, in pertinent part; that a person may not furnish any

dangerous drug except upon the prescription of a physician, dentist, podiatrist, optometrist,

veterinarian, or naturopathic doctor pursuant to Section 3640.7. A person may not furnish any

dangerous device, except upon the prescription of a physician, dentist, podiatrist, optometrist,

veterinarian, or naturopathic doctor pursuant to Section 3640.7.

"Nothing in this section authorizes a certified nurse-midwife, a nurse practitioner, a

physician assistant, or a naturopathic doctor, to order his or her own stock of dangerous drugs and

devices."

9. Section 4060 of the Code states;

"A person shall not possess any controlled substance, except that furnished to a person upon

the prescription of a physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor

pursuant to Section 3640.7, or furnished pursuant to a drug ordet issued by a certified nurse•

midwife pursuant to Section 2746.51, a nurse practitioner pursuant to Section 2836.1, a physician

assistant pursuant to Section 3502.1, a naturopathic doctor pursuant to Section 3640.5, or a

pharmacist pursuant to Section 4052.1, 4052.2, or 4052.6. This section does not apply to the

possession of any controlled substance by a manufacturer, wholesaler, third•party logistics

provider, pharmacy, pharmacist, physician, podiatrist, dentist, optometrist, veterinarian,

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naturopathic doctor, certified nurse-midwife, nurse practitioner, or physician assistant_, if in stock

in containers correctly labeled with the name and address of the supplier or producer,

This section does not authorize a certified nurse-midwife, a nurse practitioner, a physician

assistant, or a naturopathic doctor, to order his or her own stock of dangerous drugs and devices."

10. Section 4324 of the Code states:

· u(a) Every person who signs the name of another, or of a fictitious person, or falsely

makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for

any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment in

the state prison, or by imprisonment in the county jail for not more than one year.

11(b) Every person who has in his or her possession any drugs secured by a forged

prescription shall be punished by imprisonment in the state prison, or by imprisonment in the

county jail for not more than one year. 11

COST RECOVERY

11. Section 125 .3 of the Code states, in pertinent part, that the Board may request the

administrative law judge to direct a licentiate found to have committed a violation or violations of

the licensing actto pay a sum not to exceed the reasonable costs of the investigation and

enforcement of the case.

DRUGS

12. "Norco", a brand of hydrocodone bitartrate and acetaminophen, is a Schedule llI

controlled substance as designated by Health and Safety Code section 11056 (e)(4).

13. "Ultram", a trade name for tramadol hydrochloride, is a dangerous drug within the

meaning of Business and Professions Code section 4022, in that it requires a prescription under

federal law.

14. "Motrin 800 mg", a trade name for ibuprofen, is a dangerous drug within the meaning

of Business and Professions Code section 4022, in that it requires a prescription under federal

law.

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FACTUAL BACKGROUND

15. On or about June 6, 2013, Respondent contacted Physician Assistant R.'s1 office to

obtain a refill of prescription number RX 1096113 issued to Respondent's son for Norco,

Physician Assistant R. would not authorize the refill and instead instructed his staff to provide a

prescription for Motrin. Rather than fill the prescription for Motrin, Respondent altered

prescription number RX 1096113 to add refills, increase the amount of tablets from 40 to 60, and

generated prescription number RX 1098609 without authorization. Respondent then proceeded to

refill Norco for his son on two separate occasions pursuant to the altered prescription.

16, On June 5, 2013, Respondent filled prescription number RX 1098436 for Tramadol in

the amount of 100 tablets despite the fact that the prescription only allowed 50 tablets to be

dispensed.

17. On June 6, 2013, Respondent filled prescription number RX 1098611 in the amount

of 120 tablets of ibuprofen 800 mg despite the fact that the prescription only allowed 40 tablets to

be dispensed.

FIRST CAUSE FOR DISCIPLINE

(Forged Prescriptions)

18. Respondent is subject to disciplinary action under sections 4324 and 4301

subdivisions (f), (g), and G), in that between June 5 to June 17, 2013, he altered four prescriptions

which he proceeded to fill as more specifically set fotih above in paragraph 15,

SECOND CAUSE FOR DISCIPLINE

(Furnishing Controlled Substances and

Dangerous Drugs Without a Valid Prescription)

19. Respondent is subject to disciplinary action under section 4059, in that he furnished a

controlled substance, Norco, and other dangerous drugs without valid prescriptions, as more

specifically set forth above in paragraphs 15 through 17.

1 Initials are used for purposes of privacy. The name will be provided upon receipt of a Request for Discovery.

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THIRD CAUSE FOR DISCIPLINE

(IIlegally Obtained or Possessed Controlled Substances and Dangerous Drugs)

20. Respondent is subject to disciplinary action under section 4060, in that he obtained

and/or possessed a controlled substance, Norco, without valid prescriptions, as more specifically

set forth above in paragraphs 15 through 17.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board of Pharmacy issue a decision:

1. Revoking or suspending Pharmacist License Number RPH 43645, issued to Medhat

Helmy Bakr;

2. Ordering Medhat Helmy Bakr to pay the Board of Pharmacy the reasonable costs of

the investigation and enforcement of this case, pursuant to section 125.3; and,

3. Taking such other and further action as deemed necessary and proper.

?/4;/;-;- ;/l'i.o.-~ DATED: VIRGINIA HEROLD Executive Officer Board of Pharmacy Deparhnent of Consumer Affairs State of California Complainant

LA2016601667 12414227~2.doc

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( !VIEDHAT HELMY BAKR) ACCUSATION