Submitted: May 2, 2017
Consideration Appeal from Administrative Order. REVERSED and
A. Griffith, Esquire and Kaan Ekiner, Esquire, WHITEFORD
TAYLOR & PRESTON, LLC, Wilmington, Delaware. Attorneys
for Appellant Laurie Ann Spraga, D.O.
A.K. Jarosz, Esquire, STATE OF DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware. Attorney for Appellee Delaware
Board of Medical Licensure and Discipline.
CHARLES E. BUTLER JUDGE
State has a legitimate concern for maintaining high standards
with respect to physicians practicing medicine within its
borders. Physicians have a legitimate interest in maintaining
their license in good standing. The State's disciplinary
action against the physician in this case, while conducted
within a framework designed to assure procedural fairness,
fell short of the mark. The Court will therefore reverse the
decision below and remand for such further proceedings as the
administrative board deems appropriate.
facts of this case, as found by the Hearing Officer below,
are ugly. Unfortunately, the issues are far too nuanced to
respond in knee jerk fashion, despite the temptation to do
so. The story is essentially this.
was a patient at the Delaware Correctional Center who had
hepatitis C and was prescribed a very expensive medication by
his infectious disease doctor. When we say
"expensive" we mean it; each pill cost $1, 000 and
the manufacturer only sold it in lots of 28.
administration of this medicine involves some bureaucracy
that matters. The Department of Corrections ("DOC")
has two vendors that factor in here. Connections Community
Support Programs, Inc. ("Connections") provides
medical care for DOC patients. DOC has a separate contract
with CorrectRX Pharmacy Services, Inc.
("CorrectRx") to run the pharmacy operations for
DOC. The actual location we will be discussing in this case
is not technically a pharmacy. It is a "medicine
room" where medicines are administered to patients.
these two medical organizations there are a number of actors
that play parts in this incident. Connections employed
administering nurses Megan Bowerson, Roxanna Gonzalez,
nursing supervisor Christine Francis and Director of Nursing
Angela DeBenedictis. They were all on site at the James T.
Vaughn Correctional Center ("JTVCC") for some or
all of the incident to be discussed. Then there is the
Respondent Dr. Spraga, who is the Chief Medical Officer for
Connections. She was not on site at the time of the incident.
maintains a pharmacy warehouse in Maryland and delivers
medications to the various DOC facilities, including JTVCC.
The two employees that figure into this story are Dr. Jamie
McGee, a pharmacist located at the prison, and her boss, Dr.
Valerie Barnes, located at the corporate office in Maryland.
noted above, the infectious disease medication in question -
Sovaldi - was quite expensive. The treatment called for the
patient to receive 1 tablet per day for 84 days. The
manufacturer only sold these tablets in lots of 28, so that 3
containers of the pills was a full regimen. Although the
pills are not narcotics, because of their expense, their
count and distribution is tightly controlled.
March 17, 2015, Nurse Gonzalez was coming off her shift at
the JTVCC and was to be replaced by Nurse Bowerson. As
required, they counted the Sovaldi tablets and, in the course
thereof, Nurse Bowerson spilled 12 of the tablets onto the
floor. Employing a bit of advice she says she learned in
nursing school, Bowerson "wasted" the pills into
the "sharps" container - a box intended for
"biohazard" materials. Because this caused the pill
count to be 12 tablets fewer than had been previously counted
and, because the prescribed course of treatment of the
patient required the patient to ingest the 12 pills over 12
days, the pills needed to be replaced quickly.
Bowerson contacted the onsite CorrectRX pharmacist, Dr.
McGee, to request a refill of the Sovaldi pills. Dr. McGee,
in turn, contacted her boss in Maryland, Dr. Barnes. What
followed next was the subject of disputed testimony at the
hearing, so we will hew closely to the specific fact findings
by the Hearing Officer.
Barnes (from CorrectRX) contacted Dr. Spraga (the Medical
Director for Connections). Dr. Barnes informed Dr. Spraga
that the 12 Sovaldi pills had been wasted and "asked Dr.
Spraga to arrange for the retrieval of the
pills." Dr. Spraga next contacted Nurse Supervisor
Francis and told her to retrieve the Sovaldi pills from the
Francis, accompanied by Director of Nursing DeBenedictis,
went to the medication room, located the sharps container,
turned it over and shook it until the 12 pills finally fell
out. Included in the flotsam and jetsom that came from the
container were diabetic syringes with safeties engaged, and
an equal number of diabetic test strips and diabetic lancets.
There was additional material in the sharps container when it
was turned and shaken, but no one knows exactly what it was.
the Sovaldi pills were brought to Nurse Francis' office
where they were inspected by Nurses Francis and DeBenedictis.
About this time, Dr. McGee, the pharmacist, responding to a
request from her boss, Dr. Barnes, came to Nurse Francis'
office and inspected the Sovaldi pills herself. Dr. McGee has
previously conducted inspections of pills approximately 20-25
times in the past to determine if they had been
"tampered with, altered, split or had previously been
'checked' in a human mouth."
state of knowledge about where the pills came from was hotly
contested at the hearing. But the Hearing Examiner found as a
fact that Dr. McGee knew that the pills she inspected had
come from the sharps container. In sum, each of the relevant
actors knew they were about to reuse Sovaldi pills that had
been wasted in the sharps container. According to the Hearing
Examiner's finding, "Dr. Spraga determined to leave
to the two pharmacists the decision as to whether the
retrieved pills could be administered to the inmate 'as
they are the subject matter experts.'"
visual inspection having been completed and there having been
nothing observed leading the nurses or Dr. McGee to believe
the pills had been compromised, the decision was made to
place the pills back into the container and make them
available for administration to the patient. The Hearing
Examiner found, as a matter of fact, that Dr. McGee gave her
authorization to return the 12 Sovaldi pills to the
bottle. He further found that "Dr. McGee
approved the administration to DL of the 12
Hearing Examiner did not specifically find that it was
Respondent Dr. Spraga that ordered the 12 Sovaldi pills back
in to circulation. There was certainly testimony, notably
from Supervising Nurse Francis, that Drs. Spraga, McGee and
Barnes all discussed the fact that the pills had been wasted
in a sharps container. A fair reading of the record would
conclude that Dr. McGee authorized the recirculation of the
wasted pills and that Dr. Spraga assented to that
it appears that the patient ultimately ingested pills that
had been through the sharps container beforehand. The patient
was ultimately so advised -several ...