Opinion
December 30, 1993
Petitioner, a pharmacist, was found guilty of one specification of professional misconduct when, without authorization on February 29, 1988, he substituted and dispensed the noncontrolled drug Glucamide (the brand name for chlorpropomide, a drug usually prescribed for the treatment of diabetes) for the drug which had been prescribed, chlorpromazine (a tranquilizer), in violation of Education Law § 6509 (9) and 8 NYCRR 29.7 (a) (5). Petitioner challenged the administrative determination which found him guilty by commencing this proceeding contending, inter alia, the error, if any, involved no wrongful intent, thereby rendering the regulation inapplicable.
There is no requirement in 8 NYCRR 29.7 (a) (5) that the substitution must be willful or knowing or that there must be a finding of scienter on petitioner's part. Respondent's interpretation of the regulation as not requiring that wrongful intent be proven is both reasonable and rational (see, Matter of Di Marsico v Ambach, 48 N.Y.2d 576, 582) considering the potential harm which can result from the dispensing of incorrect medication.
Petitioner also contends that the determination is not supported by substantial evidence and that the penalty imposed was shockingly harsh. We disagree. There is clear evidence in the record to support the finding that incorrect dispensing of prescription medication occurred. Whether the testimony of witnesses was believable is a credibility issue for resolution by the fact finder (Matter of Golan v Sobol, 195 A.D.2d 634; Matter of Bassim v Sobol, 178 A.D.2d 787, 788, appeal dismissed, lv denied 79 N.Y.2d 941; Matter of Rojas v Sobol, 167 A.D.2d 707, 709, lv denied 77 N.Y.2d 806).
We further find that with respect to the penalty imposed, the established appellate standard is that "[i]n reviewing the propriety of [professional] discipline, we are restricted to determining only whether the penalty is so incommensurate with the offense as to shock one's sense of fairness" (Matter of D'Amico v Commissioner of Educ. of State of N.Y., 167 A.D.2d 769, 771; see, Matter of Golan v Sobol, supra). In this case, the prescribed medication was a tranquilizer to be administered to a 39-year-old adult male who had sustained brain damage. Upon this record, we cannot agree that the penalty of a six-month suspension, which was stayed and probation imposed instead, was so harsh as to rise to the level of being shockingly disproportionate.
Mikoll, Mercure, Cardona and Mahoney, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.