Is it a Crime to Prescribe Medication in Cyberspace?
A California Court Says It May Be, If the Prescriber Is Not Licensed by the Relevant State, and Has Not Met His Patient

Congress is currently considering new legislation that would crack down on online pharmacies that provide prescription medications without patients having to visit a physician.

Meanwhile, a California court recent cracked down in its own way -- holding that a Colorado physician, lacking a California license, could be prosecuted for prescribing medication online to a California resident whom he had never met, and who subsequently died.

In this column, I'll discuss the California holding -- which, while in my view correct; probably will not have far-reaching consequences. In addition, I'll describe some of the proposals Congress is deciding whether to enact into law.

The Facts of the California Case

In June 2005, after finishing his freshman year at Stanford, John McKay accessed an overseas online pharmacy portal, USAnetrx.com, which reportedly told customers they could obtain prescription drugs "without the embarrassment of talking to a doctor." Unlike most online pharmacies, this site did not require a faxed or mailed prescription from a licensed pharmacist.

McKay ordered 90 capsules of the antidepressant Prozac (generic name "fluoxetine") after transmitting his credit card and some medical history through an online questionnaire. The order was routed through JRB Health Solutions, a Florida company. One of JRB's subcontractors, Colorado physician Dr. Christian Hageseth, then authorized the prescription, without speaking to McKay. A Mississippi-based pharmacy used by JRB then filled the prescription and sent the medication to McKay in California. Subsequently, on August 2, 2005, with fluoxetine in his system, McKay - in an apparent suicide -- died of carbon monoxide and alcohol poisoning.

The Civil Lawsuit and the Criminal Prosecution

Under California Business and Professions Code 2242.1, the state prohibits the prescription and administration of a drug without a "good faith" prior examination and medical indication.

Last year, McKay's parents brought a wrongful death suit against Hageseth, JRB Health, and the Mississippi pharmacy, among others, in the U.S. District Court for the Northern District of California. That case is still pending.

In addition, Hageseth is now facing criminal prosecution in California for practicing without a California license -- a felony that carries a jail sentence. Dr. Hageseth's asserted defense is that California's licensing requirements don't apply because he never set foot in California while acting as McKay's doctor. For this reason, he says, he never practiced medicine in California.

Hageseth recently tried to get the criminal case dismissed, claiming that California courts lacked jurisdiction. After losing his motion before a San Mateo County judge, he went to the First District Court of Appeal.

The California Appellate Decision: Jurisdiction Exists for the Prosecution

The California Court of Appeals, however, found that Hageseth was indeed subject to prosecution in California, under traditional legal principles governing extraterritorial jurisdiction.

Section 778 of the California Penal Code recognizes jurisdiction for criminal offenses when a crime is committed in whole or on part in California. The court held that the crime against McKay was indeed committed in part in California, employing the concept of "constructive presence."

This concept holds that a person may be subject to punishment not only for an offense he himself commits in California, but also for an offense consummated within California's boundaries by his agent or by "other means" proceeding directly from him. In this case, the court pointed out that the Mississippi pharmacy acted as Hageseth's agent in filling his prescription, and that the pharmacies or its agencies sent the drugs to McKay in California. It was immaterial that the agent was located outside of California since its actions had a detrimental impact inside California.

The court specifically noted that "it makes no difference that the charged conduct took place in cyberspace, rather than real space." They key was that the conduct had detrimental effects in California, and was directed at California.

The Decision's Likely Consequences: Not as Far-Reaching as Some Suggest

Some observers have complained that the California ruling may deter other doctors from offering valuable medical services using the Internet. However, the California court pointed out that telemedicine legislation in California specifically allows for certain kinds of medical consultation to occur via interactive telephonic, video and Internet media. In addition, the State's Medical Practice Act specifically exempts practitioners from licensing requirements when they act across state lines, if they are doing so in consultation with another physician who is licensed in California.

Observers have also expressed fears that this decision will lessen consumers' online access to lower-cost prescription drugs. But consumers can still use the procedure many online pharmacies already require - of obtaining a prescription from a local doctor and faxing or mailing it in.

Finally, observers have worried that this decision will open the door for overreaching in other contexts. What if California (or another state) decides to label other out-of-state conduct a crime; show that it has a detrimental effect in California; and then indict the out-of-stater? As Orin Kerr has noted, however, the dormant commerce clause doctrine may serve as a valid check on overreaching. (The Commerce Clause empowers Congress to regulate interstate commerce; the dormant commerce clause limits individual states' interference with interstate commerce.)

National Solutions to Problematic Online Prescribing Practices Will Likely Be Superior to State-Level Ones

In the end, federal (and international) solutions will probably be superior. When professionals offer services online consumers in other jurisdictions, it will be simpler to refer to a uniform federal law than to fight over which state's law applies. No wonder, then, that in the Hageseth case, the court noted that it was acting "[g]iven the absence at this time of any significant national or international effort to counter the widespread and growing use of the Internet to sell drugs without a prescription based on a good faith hands-on medical examination by a physician licensed in the state in which the patient resides (or without any prescription at all . . .".

What should the federal law mandate? In some cases, requiring personal or at verbal or visual contact may be desirable. Surely, for example, getting a prescription should require more than an intake form if at all possible.

One law Congress is considering -- the proposed Online Pharmacy Consumer Protection Act -- would require that online pharmacies fill orders for people who have a prescription written by a doctor who as a "qualifying medical relationship." with the patient. For certain types of drugs, that relationship would mean that the doctor has conducted at least one in-person evaluation. With respect to psychiatric drugs like Prozac - where the patient's demeanor and behavior should be relevant to the doctor's prescription decision - this seems like a very good idea.

If the Act becomes law, online pharmacies will also be required to display a statement indicating they are complying with relevant state and federal law, and meet all state-level pharmacy licensing requirements. Penalties for the more serious categories of violations l would carry up s maximum sentence of 20 years imprisonment and a fine of up to $2.5 million. One can only hope that these kinds of penalties will prevent what happened to young John McKay from ever repeating itself.