Doctor gets jail time for online, out-of-state prescribing

The decision could give prosecutors broader reach in pursuing criminal charges in such cases.

By — Posted June 1, 2009

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In a case that could have ramifications for online prescribing, a Colorado physician was sentenced to nine months in jail for prescribing an antidepressant over the Internet to a California teenager who later committed suicide.

San Mateo County prosecutors charged psychiatrist Christian Hageseth III, MD, of Fort Collins, Colo., with a single felony count of practicing medicine without a valid California license.

The case, believed to be the first of its kind to cross state lines, could set a dangerous precedent, said Carleton L. Briggs, Dr. Hageseth's attorney. "This will destroy telemedicine nationwide, because no one would dare practice telemedicine without being licensed in all 50 states," for fear of criminal charges, he said.

San Mateo County Deputy District Attorney Jennifer Ow said her office followed up on an investigation of Dr. Hageseth's conduct by the Medical Board of California, which referred the case to county authorities for criminal prosecution. "The board has in place ways to legally practice telemedicine, and he wasn't doing that," Ow said.

She said Dr. Hageseth was not licensed in California when he prescribed fluoxetine to 19-year-old John McKay through an Internet pharmacy. There was no face-to-face evaluation nor an established patient-physician relationship.

Dr. Hageseth pleaded no contest to the charges, and is serving the sentence in Colorado. He also was ordered to pay $4,000 to reimburse the Medical Board of California for investigation costs.

But Briggs said the issue did not rise to the level of criminal charges. He also challenged what he said was a novel tactic by county authorities to prosecute Dr. Hageseth out of state.

The April sentencing stemmed from a May 2007 California Court of Appeals ruling, in which judges allowed authorities to cross state lines to pursue criminal charges against Dr. Hageseth. Judges concluded that, although Dr. Hageseth was not in California, he "could reasonably foresee that his act would produce, and he did produce, the detrimental effect [state law] was designed to prevent," that is, practicing without a California medical license.

But that interpretation required proof that Dr. Hageseth intended harm, a factor the court and county prosecutors ignored, Briggs said. He also said Dr. Hageseth had a valid Colorado license, and in September 2007, the U.S. District Court for the Northern District of California found that the antidepressant played no role in McKay's death and dismissed a civil action brought by the boy's parents.

Dr. Hageseth did not deny prescribing the antidepressant over the Internet without an in-person evaluation and cooperated with state authorities, Briggs said. "But they didn't charge him with a civil violation. Instead, they reinterpreted a criminal statute to make this a crime," he said. If other states follow suit, "the danger is you're going to have 50 inconsistent sets of regulation such that telemedicine is simply chilled."

AMA policy requires that physicians who prescribe via the Internet have a valid relationship with the patient -- including having taken a medical history, performed a physical exam and being available for follow-up -- and appropriate licensure. The AMA also supports creation of uniform state and federal rules for online prescribing.

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