Online prescribing results in state criminal charges

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Oct. 9, 2006.

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More than half of the country's state medical boards have disciplined a physician for Internet prescribing.

In most cases, medical board officials discipline a doctor who is licensed in their state and has been prescribing through an Internet pharmacy by revoking or suspending the physician's license. Board officials rely on laws -- passed in most states -- that require a previous relationship with the patient or explicitly forbid physicians from prescribing based on a patient's answers on a medical questionnaire. AMA policy requires that "physicians who prescribe medications via the Internet shall establish, or have established, a valid patient-physician relationship."

Rarely, experts said, does a state's law enforcement agency charge the physician with a crime.

Federal government officials file most criminal charges for Internet prescribing, and a controlled substance is usually involved.

But states could find criminal charges a more attractive option for reining in largely unregulated Internet pharmacies if the San Mateo (Calif.) District Attorney's office is successful in its bid to bring to trial an out-of-state physician who prescribed an antidepressant to a 19-year-old California resident who later committed suicide.

In late May, the district attorney charged Christian Hageseth III, MD, of Fort Collins, Colo., with one felony count of practicing medicine without a valid California medical license.

While it is a crime in most states to practice medicine without a license from that state's board, the San Mateo district attorney's decision to use the California statute to prosecute Dr. Hageseth is a novel tactic, experts said.

According to court documents, Dr. Hageseth does not deny that he prescribed fluoxetine hydrochloride to John McKay in June 2005. McKay committed suicide on Aug. 2, 2005, by carbon monoxide poisoning and had a detectible amount of fluoxetine in his bloodstream.

The Medical Board of California initiated an investigation against Dr. Hageseth at the behest of David McKay, John McKay's father, who has since filed a civil lawsuit against Dr. Hageseth, the Web site operators and the pharmacy.

Finding that Dr. Hageseth committed "several extreme departures from the standard of care," the medical board referred the case to the San Mateo County district attorney for prosecution. Dr. Hageseth has denied any wrongdoing.

Cracking down on Internet prescribing

The medical board has disciplined several California physicians for online prescribing since an Internet investigator came on board in 2001 to locate physicians in the state who were illegally approving prescriptions without an appropriate physician examination.

And in February 2003, the board cited six physicians not licensed in California for illegally prescribing drugs over the Internet, fining the physicians more than $48 million. The physicians had issued prescriptions to California residents without performing the prior good-faith examination California law requires.

Medical Board of California officials would not say why they chose to recommend that the state criminally charge Dr. Hageseth rather than levy fines under the its civil statutes.

But in a prepared statement, board spokeswoman Candis Cohen said the medical board's duty is to protect the public. She said referring Dr. Hageseth's case to a state office that could file criminal charges was the most appropriate action to protect the public in this instance.

The San Mateo County District Attorney's office did not return calls seeking comment. But according to court documents, it filed the criminal charges against Dr. Hageseth in late May and issued a warrant for his arrest. Bail was set at $500,000.

On Aug. 2, Dr. Hageseth's Santa Rosa, Calif., attorney Carleton Briggs asked a San Mateo County judge to dismiss the charges and quash the warrant. The judge refused to do so without a preliminary hearing. At press time, a hearing date had not been set.

Dr. Hageseth is contesting San Mateo County's authority to prosecute him for practicing medicine without a California license. He argues that the statute cannot be applied legally to his case because his practice of medicine in this instance took place entirely outside the state of California.

According to court documents, the Web site McKay used to buy the fluoxetine prescription is located outside the United States. The Web site forwarded McKay's request and the questionnaire that he filled out to JRB Health Solutions, a company headquartered in Florida. JRB then forwarded the information via the Internet to Dr. Hageseth, who reviewed it and sent it to Gruich Pharmacy in Mississippi. The Mississippi pharmacy filled the prescription and mailed it to McKay. The Medical Board of California investigation also revealed this chain of events.

Dr. Hageseth also filed a civil rights claim in the U. S. District Court for the Northern District of California in San Francisco against the San Mateo District Attorney, two deputy district attorneys and California Gov. Arnold Schwarzenegger. The lawsuit alleges that they are violating his due process rights by attempting to extradite him while his challenge to California's jurisdiction is pending.

In the federal lawsuit, Dr. Hageseth acknowledges that his Colorado medical license was restricted because of other instances of Internet prescribing, but the physician believed he was authorized to practice administrative medicine. His understanding was that he was still allowed to renew pre-existing prescriptions online, and McKay indicated on his questionnaire that he had been prescribed Prozac (fluoxetine hydrochloride) previously, according to the federal complaint.

Dr. Hageseth surrendered his Colorado medical license to that state's board of medical examiners on Aug. 12, 2005.

Dr. Hageseth alleges that he had a "standstill agreement" with the [Calif.] district attorney's office in which the office agreed not to ask Colorado police to arrest Dr. Hageseth until the doctor had time to challenge San Mateo's jurisdiction over his conduct in state court, according to the federal lawsuit, which was filed Aug. 30. Colorado police arrested Dr. Hageseth Aug. 1, and the physician spent the night in jail.

He was released after showing a Colorado judge the pleading related to his case, the motion to dismiss and the motion to quash the arrest warrant that were scheduled to be heard in California on Aug. 2.

In mid-September, a federal judge brokered a stipulation between the two sides that will allow Dr. Hageseth to ask a California appellate court to issue a restraining order preventing his extradition, and he withdrew his federal application for a temporary restraining order. Dr. Hageseth remains in Colorado.

Broader implications

In the first few years after Internet pharmacies started creeping up, a lot of doctors who approved prescriptions were nearing retirement and looking for ways to build their nest egg. Others were having problems with their practices. But, experts said, Internet pharmacy operators are now approaching medical students, offering Internet prescribing as a quick way to pay off medical school debt after graduation.

Medical boards continue to crack down on the practice, but experts said it is impossible to quantify how many physicians are approving online prescriptions on Internet pharmacies operating on any given day.

What effect Dr. Hageseth's prosecution will have on the practice of online prescribing is unclear. But legal experts will be watching Dr. Hageseth's criminal case closely.

The threat of successful criminal prosecution could be one way to cut successfully into the number of physicians willing to undertake such a risky enterprise.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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