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2006AP1110 Noesen v. State of Wisconsin Department of Regulation and Licensing

By: dmc-admin//March 31, 2008//

2006AP1110 Noesen v. State of Wisconsin Department of Regulation and Licensing

By: dmc-admin//March 31, 2008//

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Administrative Law
Pharmacist regulation

Where a pharmacist refused to fill a prescription for contraceptives, and failed to take steps to ensure the patient could obtain them elsewhere, he was properly reprimanded by the Pharmacy Examining board.

"The Board's determination of the standard of care is amply supported by the record-it relied on testimony from the Department's expert witness and APhA's 1997-98 Policy Committee Report, which contained both the conscience clause and a code of ethics for pharmacists. Noesen merely argues his evidence and his expert were better and more credible, but we will not substitute our judgment for the agency's on fact questions.

"More important, however, it does not matter what we would hold the standard of care to be, because we conclude Noesen failed to conform to even his own proposed standard.

Once Noesen determined Renz was using her prescription for contraceptive purposes, Noesen knew there were no circumstances under which he would help fill her prescription.

Even the conscience clause he cited 'supports the establishment of systems to ensure [the] patient's access to legally prescribed therapy….'"

"In short, Noesen abandoned even the steps necessary to perform in a 'minimally competent' manner under any standard of care. He prevented all efforts Renz made to obtain her medication elsewhere when he refused to complete the transfer and gave her no options for obtaining her legally prescribed medication elsewhere. The Board could therefore properly conclude he violated a standard of care applicable to pharmacists: it does not matter which standard, because Noesen's behavior 'substantially departs' from all of them. See Wis. Admin. Code § Phar 10.03(2)."

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2006AP1110 Noesen v. State of Wisconsin Department of Regulation and Licensing
Dist. III, Barron County, Babler, J., Noesen, J.

Attorneys: For Appellant: Ruth, Robert T., Madison; Brejcha, Thomas, Chicago, IL; Linton, Paul Benjamin, Northbrook, IL; Henning, Christopher, Chicago, IL; For Respondent: Olsen, Bruce A., Madison

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