Wednesday, June 3, 2009

Telemedicine Internet Prescribing Case - Colorado Doctor Sentenced To 9 Months Jail Sentence In California

In a case that could have ramifications for online prescribing and telemedicine, on April 19, 2009, a Colorado physician, Christian Hageseth, was sentenced to nine months in jail for prescribing the antidepressant fluoxetine (generic Prozac) over the Internet to a California teenager and Stanford student who later committed suicide two months later. There was no evidence that the Prozac caused the death of the student in 2005.

The case is one of the first criminal prosecutions of a practitioner for using telehealth without having a license in the patient's state. In other words, Dr. Hageseth was never present in California at any time during the alleged commission of the unlawful practice of medicine but the California court nevertheless asserted jurisdiction over him.

The physician has already surrendered his medical license. The sentence followed a no contest guilty plea after the California Court of Appeals issued an opinion in May 2007 which held that authorities could cross state lines to pursue criminal charges against Dr. Hageseth. Hageseth v. Superior Court, 150 Cal. App.4th 1399, 59 Cal. Rptr.3d 385.

After sentencing, Hagaseth made a statement that he pled guilty because he was financially and emotionally drained. Hageseth was allowed to serve the sentence in Colorado. He also was ordered to pay $4,200 to reimburse the Medical Board of California for investigation costs.

History Of Case

The case was prosecuted by the San Mateo County District Attorney's Office which followed up on an investigation of Dr. Hageseth's conduct by the Medical Board of California, which referred the case to county authorities for criminal prosecution.

The Medical Board's position was that Dr. Hageseth was not legally practicing telemedicine because he was not licensed in California when he prescribed fluoxetine to 19-year-old John McKay through an Internet pharmacy. Further, the Board indicated it did not meet its telemedicine criteria since there was no face-to-face evaluation nor an established patient-physician relationship. In our opinion, it may have been referred criminally because the California Medical Board did not have any jurisdiction over a Colorado physician.

This case took 3 years to go through the courts and there was a civil lawsuit which was ultimately dismissed. The history is as follows. In 2006, the San Mateo District Attorney's Office filed a felony charge against Dr. Hageseth for practicing medicine without a license under § 2052 of the California Business and Professions Code. Section 2052 provides that any person who "practices . . . any mode of treating the sick . . . in this state, or who diagnoses, treats or prescribes for any . . . physical or mental condition of any person, without having at the time a valid . . . certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars, by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both”.

The criminal complaint was based on the California Medical Board's investigative report. The report states that, on or about June 11, 2005, John McKay, a resident of San Mateo County, initiated an online purchase of fluoxetine (generic Prozac) on "www. usanetrx. com," an interactive Web site located outside of the United States. The questionnaire McKay received and returned online, which identified him as a resident of this state, was forwarded by operators of the Web site to JRB Health Solutions for processing. JRB, which has its headquarters in Florida and operates a server in Texas, forwarded McKay's purchase request and questionnaire to Dr. Hageseth, its "physician subcontractor," who resided in Fort Collins, Colorado, and was licensed to practice medicine in that state.

After reviewing McKay's answers to the questionnaire, Dr. Hageseth issued an online prescription of the requested medication and returned it to JRB's server in Texas. JRB forwarded the prescription to the Gruich Pharmacy Shoppe in Biloxi, Mississippi, which filled the prescription and mailed the requested amount of fluoxetine to McKay at his California address. Several weeks later, intoxicated on alcohol and with a detectable amount of fluoxetine in his blood, McKay committed suicide by means of carbon monoxide poisoning.

Hageseth moved to dismiss the charge on the grounds that the court lacked jurisdiction to hear the case because “all the alleged criminal acts occurred outside the state” of California. The trial court denied his motion and he appealed.

Court Of Appeals Decision

The Court of Appeals began its analysis of the jurisdiction issue by noting that § 27 of the California Penal Code says “persons are liable under the laws of this state . . . who commit, in whole or in part, any crime within this state.” It noted that because the issue of jurisdiction goes to the court’s power to hear a case, it is a legal issue that must be decided by the court, not by a jury.

Hageseth argued on appeal that his act of practicing medicine began and ended with the writing of the prescription in Colorado, and the filling of the prescription, which occurred in Mississippi, was an entirely separate act, requiring a separate license’ for which he cannot be held criminally accountable. Hageseth argued that it is irrelevant whether he knew the medication he prescribed would be sent to California because his act ended with the writing of the prescription.

The Court of Appeals responded by noting that under the “detrimental effects" theory of extraterritorial criminal jurisdiction, acts “done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect”.

The Court of Appeals then found that the facts in this case supported the application of the “detrimental effects” theory of jurisdiction. The Court of Appeals opined:

"A preponderance of the evidence shows that, without having at the time a valid California medical license, [Hageseth] prescribed fluoxetine for a person he knew to be a California resident knowing that act would cause the prescribed medication to be sent to that person at the California address he provided. If the necessary facts can be proved at trial beyond a reasonable doubt, the People will have satisfactorily shown a violation of Business and Professions Code section 2052. It is enough for our purposes that a preponderance of the evidence now shows that [he] intended to produce or could reasonably foresee that his act would produce, and he did produce, the detrimental effect section 2052 was designed to prevent[, i.e., practicing medicine without a license.]"

The Court of Appeals then considered and rejected Hageseth's other arguments including whether it should make a difference that the offense took place in cyberspace rather than in the real space for which the jurisdictional statutes were designed.

Attorney Comments: AMA policy requires that physicians who prescribe via the Internet have a valid relationship with the patient -- including having taken a medical history, performed a physical exam and being available for follow-up -- and appropriate licensure. The AMA also supports creation of uniform state and federal rules for online prescribing. The AMA's policy may go further than most telemedicine practitioners would deem reasonable -- especially where there are consult referrals for radiology or opthamology.

When physicians consider telemedicine practices which may or may not include Internet prescribing, these "worst case" scenarios need to be considered. Every attempt must be made to comply with various state rules and abiding by AMA policy can be a valid defense. Legal opinions regarding the telemedicine practice are critical to avoid facing exposure by various state medical boards or other types of prosecution.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers.


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