Legal Implications of Prescribing over the Internet
Dr. Fink is professor ofpharmacy law and policy atthe University of KentuckyCollege of Pharmacy,Lexington.
Issue of the Case
May a physician in Colorado, whoprescribed antidepressants for a teenagerin California over the Internet, beprosecuted for practicing medicinewithout a license in California?
Facts of the Case
A student who had just completedhis freshman year of college went to anonline pharmacy portal originatingoverseas, which allegedly told customersthat they could get prescriptiondrugs "without the embarrassment oftalking to a doctor." The site did notrequire mailing an original prescriptionor electronic transmission of the originalby facsimile.
The student requested 90 capsules ofan antidepressant, completing anonline health questionnaire about hismedical history and submitting creditcard information for payment. Therequest went to a firm in Florida, whichin turn routed it to a subcontractingphysician in Colorado. The prescriberauthorized and requested dispensingthe medication without speaking to thestudent. The prescription was forwardedto a pharmacy in Mississippi thatwas part of the arrangement, and themedication was sent to the student inCalifornia. Two months later, the studentwas dead of an apparent suicidefrom carbon monoxide and alcohol poisoning.He had the antidepressant in hissystem at the time of death.
Several legal actions arose fromthese facts. First, the parents of thedeceased student filed a wrongfuldeath lawsuit against the physician, thepharmacy, and the Florida firm thatfacilitated the business transaction.Second, the physician was chargedwith the crime of practicing medicine inCalifornia without a license, a felonythat carries a potential term of imprisonment.
When those criminal charges werefiled, the physician sought to have themdismissed, with the argument that thelicensing requirements in California donot apply to him, because he was alwaysin Colorado while acting as thestudent's physician. Accordingly, he wasnever in the state while acting in thisprofessional role and, hence, not subjectto the jurisdiction of the Medical Boardof California and California courts. Hepursued having the action dismissed in alocal California court and lost. He thenappealed to a California Court of Appeals.
The Court's Ruling
The California Court of Appeals ruledthat the California courts did indeedhave jurisdiction over the acts of theColorado physician, and the mattercould proceed through the lower courtsin the justice system of the state.
The Court's Reasoning
The traditional rules of jurisdiction, orauthority, of a court to hear and decidea matter require that the issue or casearise within the territory served by thetribunal. An exception to that generaldoctrine is known as extraterritorialjurisdiction. The relevant Californiastatutes confer on the courts in thatstate jurisdiction, or power over criminalcases, when it is alleged that thecrime was committed in whole or inpart in the state. The court here concludedthat the crime was in fact committedin part in California, using a legalprinciple known as constructive presence.
Under the constructive presenceapproach to these matters, an individualmay be subject to criminal penaltiesnot only for acts done while physicallypresent in the state, but also for anoffense consummated within theboundaries of the state by his agent orby other means proceeding directlyfrom him. Under the factual scenariopresented in this case, the Mississippipharmacy acted as the agent of theprescribing physician in dispensing themedication, and then someone at thepharmacy acting on its behalf had themedication shipped to the student inCalifornia.
The court ignored the fact that theagent—the pharmacy—was locatedoutside the state, focusing instead onthe detrimental impact flowing from itsactions that had occurred inside thestate. Specifically, the court observedthat "it makes no difference that thecharged conduct took place in cyberspace,rather than real space." In theview of the judges, the most importantfacet of the case was that the conductof the physician had detrimental effectsin California and was directed at aCalifornia resident.
Some commentators have suggestedthat this case may impede the developmentof telemedicine—an approachto the practice of medicine thatincorporates advanced technologysuch as interactive telephonic, Internet,and video media to facilitate medicalconsultation. Telemedicine is specificallyauthorized by statute in California;the activities challenged in this case ascriminal behavior did not comply withthose standards.