Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.
May a physician in Colorado, who prescribed antidepressants for a teenager in California over the Internet, be prosecuted for practicing medicine without a license in California?
A student who had just completed his freshman year of college went to an online pharmacy portal originating overseas, which allegedly told customers that they could get prescription drugs "without the embarrassment of talking to a doctor." The site did not require mailing an original prescription or electronic transmission of the original by facsimile.
The student requested 90 capsules of an antidepressant, completing an online health questionnaire about his medical history and submitting credit card information for payment. The request went to a firm in Florida, which in turn routed it to a subcontracting physician in Colorado. The prescriber authorized and requested dispensing the medication without speaking to the student. The prescription was forwarded to a pharmacy in Mississippi that was part of the arrangement, and the medication was sent to the student in California. Two months later, the student was dead of an apparent suicide from carbon monoxide and alcohol poisoning. He had the antidepressant in his system at the time of death.
Several legal actions arose from these facts. First, the parents of the deceased student filed a wrongful death lawsuit against the physician, the pharmacy, and the Florida firm that facilitated the business transaction. Second, the physician was charged with the crime of practicing medicine in California without a license, a felony that carries a potential term of imprisonment.
When those criminal charges were filed, the physician sought to have them dismissed, with the argument that the licensing requirements in California do not apply to him, because he was always in Colorado while acting as the student's physician. Accordingly, he was never in the state while acting in this professional role and, hence, not subject to the jurisdiction of the Medical Board of California and California courts. He pursued having the action dismissed in a local California court and lost. He then appealed to a California Court of Appeals.
The California Court of Appeals ruled that the California courts did indeed have jurisdiction over the acts of the Colorado physician, and the matter could proceed through the lower courts in the justice system of the state.
The traditional rules of jurisdiction, or authority, of a court to hear and decide a matter require that the issue or case arise within the territory served by the tribunal. An exception to that general doctrine is known as extraterritorial jurisdiction. The relevant California statutes confer on the courts in that state jurisdiction, or power over criminal cases, when it is alleged that the crime was committed in whole or in part in the state. The court here concluded that the crime was in fact committed in part in California, using a legal principle known as constructive presence.
Under the constructive presence approach to these matters, an individual may be subject to criminal penalties not only for acts done while physically present in the state, but also for an offense consummated within the boundaries of the state by his agent or by other means proceeding directly from him. Under the factual scenario presented in this case, the Mississippi pharmacy acted as the agent of the prescribing physician in dispensing the medication, and then someone at the pharmacy acting on its behalf had the medication shipped to the student in California.
The court ignored the fact that the agent—the pharmacy—was located outside the state, focusing instead on the detrimental impact flowing from its actions that had occurred inside the state. Specifically, the court observed that "it makes no difference that the charged conduct took place in cyberspace, rather than real space." In the view of the judges, the most important facet of the case was that the conduct of the physician had detrimental effects in California and was directed at a California resident.
Some commentators have suggested that this case may impede the development of telemedicine—an approach to the practice of medicine that incorporates advanced technology such as interactive telephonic, Internet, and video media to facilitate medical consultation. Telemedicine is specifically authorized by statute in California; the activities challenged in this case as criminal behavior did not comply with those standards.