Summary:

First paragraph of article reads:  "Two years ago, Christian Hageseth logged on to the Internet in Colorado and prescribed anti-depressant drugs to a Menlo Park, Calif., teenager with a history of mental illness and alcohol abuse. A few months later, 19-year-old John McKay killed himself in his family home."

Paragraph 20 reads:  "After transmitting his credit card number and some details about his medical history, McKay placed an order for fluoxetine, a generic alternative to Prozac."

http://www.law.com/jsp/article.jsp?id=1178874288583


Web Prescription Tests California Medical License Law

Out-of-state doctor consults online with a patient in California -- is he guilty of practicing in the state without a license?

Matthew Hirsch
The Recorder
May 14, 2007

Two years ago, Christian Hageseth logged on to the Internet in Colorado and prescribed anti-depressant drugs to a Menlo Park, Calif., teenager with a history of mental illness and alcohol abuse. A few months later, 19-year-old John McKay killed himself in his family home.

Upon learning that Hageseth had treated McKay, and that he didn't have a license in California, state medical investigators urged local prosecutors to charge him with a felony. Last year they did, accusing him of practicing without a California license. The maximum penalty, according to the prosecution, would be three years in state prison and state fines.

And although Hageseth's lawyer and deputy district attorneys in San Mateo County, Calif., disagree on many aspects of the case, this much is clear: The 66-year-old Hageseth would be an easier target for prosecutors had he run his virtual doctor's office inside California state lines.

Now Hageseth -- who had a restricted license in Colorado when he prescribed McKay's medication, according to court documents -- is trying to get the case dismissed, claiming that the state courts lack jurisdiction to try him under California law. Though a San Mateo County judge refused his request, Hageseth's attorney, Santa Rosa, Calif., lawyer Carleton Briggs, has persuaded the 1st District Court of Appeal to consider issuing a writ that would overturn that decision.

Briggs claims that if the 1st District agrees with the government's application of medical licensing laws, thousands of out-of-state doctors could face felony prosecution.

"The decision in this case will shape the future of telemedicine [in California]," Briggs wrote in his petition to the appeal court.

On that point, at least, Briggs seems to have found some agreement on the appeal court. At oral arguments in March, one justice suggested the case could have big repercussions, according to a transcript of the recorded argument, provided by Briggs.

"There are probably thousands, maybe hundreds of thousands of doctors in the 49 other states who are not licensed in this state, but who are providing some kind of medical attention for California residents," said the justice, who Briggs later identified as Justice J. Anthony Kline.

The appeal court took the rare step of asking for additional briefing on the court's jurisdiction over out-of-state doctors, suggesting the parties might want to seek out amici like the Medical Board of California.

Justices Kline, Paul Haerle and James Richman are expected to take Hageseth v. Superior Court (The People), A115390, under submission at the end of the week.

MEDICINE FROM AFAR

Telemedicine refers to the delivery of medicine from afar, and it can occur in many ways. The broad term might refer to two doctors discussing a case over the phone or the Internet, for example. Or it might involve direct patient interaction with physicians located far away.

The American Telemedicine Association doesn't keep hard statistics on how many doctors incorporate telemedicine into their practice, according to the executive director, Jonathan Linkous.

But Susan Penney, a lawyer at the California Medical Association, said she thinks it's uncommon for doctors to prescribe medication without first meeting a patient face to face.

California state law requires medical practitioners to conduct a good-faith exam before prescribing medication, Penney said. The CMA declined to weigh in with an amicus brief on Hageseth's behalf, she said, because Hageseth's position appears to be inconsistent with that requirement.

"We do not believe that we can support [Hageseth's] underlying position ... that it's appropriate to prescribe without a good-faith prior exam," she said.

In court papers, Hageseth claims the teenager wrote in his questionnaire that he had been prescribed anti-depressants before, and that he neglected to mention his alcohol use. But prosecutors counter that this argument is a gratuitous attack on the victim, not to mention irrelevant because the doctor did nothing to verify McKay's claims.

Briggs said his client surrendered his Colorado license after medical officials there contacted him about McKay.

"Hageseth doesn't take the position that what he did is right. He takes the position that he did not commit a crime," Briggs said.

ROUTING THE ORDER

Hageseth hooked up with McKay in June 2005 through an overseas Web site called Usanetrx.com, an Internet portal offering access to discount prescription drugs.

After transmitting his credit card number and some details about his medical history, McKay placed an order for fluoxetine, a generic alternative to Prozac.

The order was then routed through JRB Health Solutions, a Florida company with which Hageseth worked to prescribe medication. A Mississippi pharmacy used by JRB then filled McKay's order and shipped the meds directly to him.

A few weeks later, after McKay committed suicide by carbon monoxide poisoning, alcohol and fluoxetine were detected in his bloodstream.

Last year, McKay's parents sued Hageseth, JRB Health Solutions and the Mississippi pharmacy, among others, in California's Northern District federal court. That case is still pending. But so far Hageseth is the only defendant who's faced criminal prosecution, according to his lawyer.

Briggs argues that the state's licensing requirements don't apply to Hageseth because he never set foot in California while acting as McKay's doctor.

"If anything, it was McKay who left California via the Internet and went to India," where Usanetrx.com is registered, Briggs said.

San Mateo County Deputy District Attorney Jennifer Ow, who wrote one of the briefs opposing Briggs' writ petition, said it might be true that McKay left the state via the Internet -- but Hageseth then would have entered the state the same way.

"The Internet flattens the world," she said.

In court papers, Briggs argues that if the prosecution's position becomes law, "any out-of-state doctor practicing telemedicine for a California resident can be arrested anywhere in the country, handcuffed and extradited ... to face felony charges."

Ow has countered in her briefs that Briggs' "rhetoric sounds compelling," but she maintains that Hageseth's use of the Internet cannot shield him from liability.

She draws a comparison to a hypothetical person from Colorado who plans to have his estranged wife killed in California, then argues that California courts have jurisdiction only over the hit man. "Such a result is ludicrous," she wrote.

The deputy DA also argues that Hageseth's challenge "strikes at the very heart" of Penal Code §778, a law tailored specifically to allow the prosecution of a defendant from another state who commits a crime in California.

The state attorney general's office, responding to the appeal court's invitation to submit a brief on the jurisdiction question, has supported the DA's position.

Deputy Attorney General Catherine Rivlin wrote that Briggs' vision of out-of-state physicians being dragged off to jail is "unfounded."

She noted, for example, that state law exempts out-of-state doctors from the licensing requirement if they are acting in consultation with a licensed California physician. What's more, she added, the state's licensing requirement "has not filled jails with well-meaning unlicensed practitioners."

Briggs said he accepts that out-of-state doctors treating people in California without a license in this state have largely escaped scrutiny so far. Those physicians haven't been filling the jails "because they haven't prosecuted anybody," he added. "This is the first time."