Online prescribing case raises jurisdiction issue

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 July 9, 2007.

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One of the first hurdles that any court must clear before taking charge of a civil lawsuit or a criminal prosecution is whether it has authority over the parties or defendant involved. The answer to that question can be more complicated in civil than in criminal law, but experts agree that the Internet communication and business transactions that cross state lines have complicated the issue in both arenas.

When the Internet is used to prescribe and deliver drugs, states have traditionally handled the matter through licensing boards who assess fines and suspend or revoke the medical license of the physician involved.

But California courts can prosecute out-of-state physicians for prescribing drugs over the Internet to California residents with whom they have not established a physician-patient relationship, one of the state's appellate courts has ruled.

That means that the San Mateo (Calif.) County district attorney can proceed with his criminal case against a Colorado physician who has been charged with one felony count of practicing medicine without a valid California license.

But the state's Supreme Court will have the final say on the matter because Christian Hageseth III, MD, of Fort Collins, Colo., has decided to appeal the decision of the First District of the California Court of Appeals.

According to court documents, Dr. Hageseth does not deny that he prescribed fluoxetine hydrochloride to San Mateo County resident John McKay in June 2005. McKay committed suicide in August 2005 and had a detectible amount of fluoxetine in his bloodstream.

Several state boundaries were crossed for the prescription to get into McKay's hands.

Court documents show that the Web site McKay used to buy the fluoxetine prescription was located outside the U.S. The Web site forwarded McKay's request and the questionnaire that he filled out to JRB Health Solutions, which is 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 investigated Dr. Hageseth, and its examination confirmed this chain of events. The board then referred the case to the San Mateo County district attorney for prosecution.

Dr. Hageseth has denied any wrongdoing, and the appellate court ruling stems from the physician's attempt to have the charges thrown out. He argued that California didn't have the authority to prosecute him because his practice of medicine in this case took place entirely outside the state.

The court acknowledged that Dr. Hageseth was in Colorado when he prescribed the drug and never directly communicated with anyone in California about the prescription. But justices didn't see those facts as something that should stop California from prosecuting him.

"Jurisdiction is not precluded by petitioner's physical absence from the state and the fact that he did not act through an agent located in California," the court ruled.

Nor were justices willing to buy the argument that traditional jurisdictional analysis would not apply because Dr. Hageseth conducted his activities via the Internet.

"There is no persuasive reason why [Dr. Hageseth's] or his employer's use of cyberspace, or the use of it by McKay or the Web site he contacted, should defeat application in this case of the traditional legal principles we rely upon to find extraterritorial jurisdiction."

The California Legislature has addressed the problem of criminal activity spanning its state as well as others by passing legislation that lets the state punish a defendant under California law for a crime committed, or partially committed, in the state.

In addition, it has enacted a law that says a defendant who is not in California but "through the intervention of an innocent or guilty agent or any other means proceeding directly" from the defendant can be prosecuted for a crime that starts outside the state if it is consummated within the state.

Dr. Hageseth argued that California lacks territorial jurisdiction over his activities because no part of the crime with which he is charged was committed, either by him or an agent, within the boundaries of California. In this case, it could be argued that the Mississippi pharmacy was the "agent."

But the court disagreed, ruling that the state's statute applies to an offense consummated within the state by a defendant outside the state, "regardless of whether the agent or other means employed was within the state at the relevant time."

The court said the law essentially codified the theory of extraterritorial jurisdiction that the U.S. Supreme Court developed in 1911 in Strassheim v. Daily, when it held that a state may exercise jurisdiction over criminal acts that are committed outside the state "but are intended to, and do, produce harm within the state." Parroting that language, the appeals court said Dr. Hageseth "intended to produce or could have reasonably foreseen that his act would produce, and he did produce, the detrimental effect that the [state's Business and Professional Code] sought to prevent" -- practicing without a license in the state of California.

But legal experts who argue that cyberspace requires a different system of jurisdictional rules, would likely dispute the conclusion that Dr. Hageseth could have reasonably foreseen that he was practicing medicine in California. They argue that the Internet undermines the role of territorial boundaries in delineating "law space that is, in providing notice that the crossing of a physical boundary may subject one to new rules."

Indeed, that is part of the argument Santa Rosa, Calif., attorney Carleton Briggs, who represents Dr. Hageseth, will reiterate on appeal to California's Supreme Court. One of his arguments is that California's assertion of extraterritorial jurisdiction over Dr. Hageseth's Internet conduct is unreasonable because Dr. Hageseth was not put on notice of the unlawfulness of his conduct.

The Appeals Court dismissed this claim, ruling that California's prohibition on the practice of medicine without a valid state license is neither obscure or unreasonable and that Dr. Hageseth cannot reasonably claim ignorance of the law.

But Briggs sees it differently, especially given the fact that Dr. Hageseth had a valid medical license in Colorado when he prescribed the drug and many years ago had a valid California medical license when he lived in the state.

He said Dr. Hageseth did not intend to break California law, an element of extraterritorial jurisdiction in the U.S. Supreme Court's Strassheim holding. And, he said, if the appeals court ruling is allowed to stand, it removes intent from the equation, leaving an effects-only test that would open a can of worms.

"If the court is correct and criminal jurisdiction applies, what about doctors practicing telemedicine?" he said. "The Internet is a network, and what happens on one part of the network can simultaneously affect the entire network. Are we going to subject everybody to everybody else's jurisdiction?"

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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