Web Prescription Tests California Medical License Law—(LAW.COM)

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The Recorder

Matthew Hirsch

May 14, 2007

Two years ago, Christian Hageseth logged on to the Internet in Colorado and prescribed anti-depressant drugs to a Menlo Park, Calif., teenager with a history of mental illness and alcohol abuse. A few months later, 19-year-old John McKay killed himself in his family home. Upon learning that Hageseth had treated McKay, and that he didn’t have a license in California, state medical investigators urged local prosecutors to charge him with a felony. Last year they did, accusing him of practicing without a California license. The maximum penalty, according to the prosecution, would be three years in state prison and state fines.

And although Hageseth’s lawyer and deputy district attorneys in San Mateo County, Calif., disagree on many aspects of the case, this much is clear: The 66-year-old Hageseth would be an easier target for prosecutors had he run his virtual doctor’s office inside California state lines.

Now Hageseth — who had a restricted license in Colorado when he prescribed McKay’s medication, according to court documents — is trying to get the case dismissed, claiming that the state courts lack jurisdiction to try him under California law. Though a San Mateo County judge refused his request, Hageseth’s attorney, Santa Rosa, Calif., lawyer Carleton Briggs, has persuaded the 1st District Court of Appeal to consider issuing a writ that would overturn that decision.

Briggs claims that if the 1st District agrees with the government’s application of medical licensing laws, thousands of out-of-state doctors could face felony prosecution.

“The decision in this case will shape the future of telemedicine [in California],” Briggs wrote in his petition to the appeal court.

On that point, at least, Briggs seems to have found some agreement on the appeal court. At oral arguments in March, one justice suggested the case could have big repercussions, according to a transcript of the recorded argument, provided by Briggs.

“There are probably thousands, maybe hundreds of thousands of doctors in the 49 other states who are not licensed in this state, but who are providing some kind of medical attention for California residents,” said the justice, who Briggs later identified as Justice J. Anthony Kline.

The appeal court took the rare step of asking for additional briefing on the court’s jurisdiction over out-of-state doctors, suggesting the parties might want to seek out amici like the Medical Board of California.

Justices Kline, Paul Haerle and James Richman are expected to take Hageseth v. Superior Court (The People), A115390, under submission at the end of the week.

MEDICINE FROM AFAR

Telemedicine refers to the delivery of medicine from afar, and it can occur in many ways. The broad term might refer to two doctors discussing a case over the phone or the Internet, for example. Or it might involve direct patient interaction with physicians located far away.

The American Telemedicine Association doesn’t keep hard statistics on how many doctors incorporate telemedicine into their practice, according to the executive director, Jonathan Linkous.

But Susan Penney, a lawyer at the California Medical Association, said she thinks it’s uncommon for doctors to prescribe medication without first meeting a patient face to face.

California state law requires medical practitioners to conduct a good-faith exam before prescribing medication, Penney said. The CMA declined to weigh in with an amicus brief on Hageseth’s behalf, she said, because Hageseth’s position appears to be inconsistent with that requirement.

“We do not believe that we can support [Hageseth’s] underlying position … that it’s appropriate to prescribe without a good-faith prior exam,” she said.

In court papers, Hageseth claims the teenager wrote in his questionnaire that he had been prescribed anti-depressants before, and that he neglected to mention his alcohol use. But prosecutors counter that this argument is a gratuitous attack on the victim, not to mention irrelevant because the doctor did nothing to verify McKay’s claims.

Briggs said his client surrendered his Colorado license after medical officials there contacted him about McKay.

“Hageseth doesn’t take the position that what he did is right. He takes the position that he did not commit a crime,” Briggs said.

ROUTING THE ORDER

Hageseth hooked up with McKay in June 2005 through an overseas Web site called Usanetrx.com, an Internet portal offering access to discount prescription drugs.

After transmitting his credit card number and some details about his medical history, McKay placed an order for fluoxetine, a generic alternative to Prozac.

The order was then routed through JRB Health Solutions, a Florida company with which Hageseth worked to prescribe medication. A Mississippi pharmacy used by JRB then filled McKay’s order and shipped the meds directly to him.

A few weeks later, after McKay committed suicide by carbon monoxide poisoning, alcohol and fluoxetine were detected in his bloodstream.

Last year, McKay’s parents sued Hageseth, JRB Health Solutions and the Mississippi pharmacy, among others, in California’s Northern District federal court. That case is still pending. But so far Hageseth is the only defendant who’s faced criminal prosecution, according to his lawyer.

Briggs argues that the state’s licensing requirements don’t apply to Hageseth because he never set foot in California while acting as McKay’s doctor.

“If anything, it was McKay who left California via the Internet and went to India,” where Usanetrx.com is registered, Briggs said.

San Mateo County Deputy District Attorney Jennifer Ow, who wrote one of the briefs opposing Briggs’ writ petition, said it might be true that McKay left the state via the Internet — but Hageseth then would have entered the state the same way.

“The Internet flattens the world,” she said.

In court papers, Briggs argues that if the prosecution’s position becomes law, “any out-of-state doctor practicing telemedicine for a California resident can be arrested anywhere in the country, handcuffed and extradited … to face felony charges.”

Ow has countered in her briefs that Briggs’ “rhetoric sounds compelling,” but she maintains that Hageseth’s use of the Internet cannot shield him from liability.

She draws a comparison to a hypothetical person from Colorado who plans to have his estranged wife killed in California, then argues that California courts have jurisdiction only over the hit man. “Such a result is ludicrous,” she wrote.

The deputy DA also argues that Hageseth’s challenge “strikes at the very heart” of Penal Code §778, a law tailored specifically to allow the prosecution of a defendant from another state who commits a crime in California.

The state attorney general’s office, responding to the appeal court’s invitation to submit a brief on the jurisdiction question, has supported the DA’s position.

Deputy Attorney General Catherine Rivlin wrote that Briggs’ vision of out-of-state physicians being dragged off to jail is “unfounded.”

She noted, for example, that state law exempts out-of-state doctors from the licensing requirement if they are acting in consultation with a licensed California physician. What’s more, she added, the state’s licensing requirement “has not filled jails with well-meaning unlicensed practitioners.”

Briggs said he accepts that out-of-state doctors treating people in California without a license in this state have largely escaped scrutiny so far. Those physicians haven’t been filling the jails “because they haven’t prosecuted anybody,” he added. “This is the first time.”

Fort Collins psychiatrist defends Internet prescriptions; wants to move on—(coloradoan.com)

BY NATE TAYLOR • NateTaylor@coloradoan.com • April 26, 2009

The mental illness has at different times directly or indirectly led the one-time psychiatrist down paths to a felony conviction, divorce, remarriage, the loss of his medical license twice, open heart surgery and suicidal thoughts.

And all those events happened in the last 11 years after the 68-year-old spent a career counseling those with mental illnesses.

Despite those hardships and a possible 9-month jail sentence, Hageseth says he wants to dedicate the rest of his life to helping low-income people dealing with depression receive proper care.

Hageseth pleaded guilty in February to practicing medicine without a license in California after he ad-mitted to prescribing a generic form of Prozac through an online pharmacy in 2005 to John McKay, a mentally ill University of Stanford student who later killed himself.

And although McKay’s family claimed in a civil suit the drug made their son more depressed, it was determined the antidepressant Hageseth prescribed did not cause McKay’s death.

Charges were still filed against Hageseth for practicing medicine in the state of California without a license.

Hageseth prescribed the drug from his Fort Collins home knowing McKay lived in California and that he was not licensed to practice there.

But to fully understand how Hageseth now finds himself in the precarious situation facing jail time and bankruptcy, he says it’s important to comprehend why he’s made the choices he has.

Losing license

Hageseth says he treated his now wife, Laurel Burson, for severe depression ending in 1995. The two fell in love during the counseling sessions and Burson was recommended to another therapist.

The personal relationship with Burson did not turn physical, Hageseth says, until after each got divorced in 1998.

But Burson’s ex-husband asked the state medical board to file a complaint alleging Hageseth had violated several statutory provisions as a result of his relationship with Laurel.

Eventually Hageseth’s medical license was stripped ­ a decision he says caused his life to spiral out of control.

In 2001, the Colorado Court of Appeals gave him his license back, but Hageseth says his reputation was ruined and he started conducting medical studies before deciding to fill online pre-scriptions through JRB Solutions, Inc.

“My decision to start prescribing online was for two reasons: I needed to make a living,” Hageseth said in an interview with the Coloradoan at his Fort Collins home last week. “And two: Because there are 71 million people who don’t have health insurance or their coverage is so limited they can’t make an appointment. … In my mind I was doing something good.

While working for JRB Solutions, Hageseth would only refill orders and relied on the integrity of those seeking medication not to lie on questionnaires.

And when McKay lied on his form saying he had previously been prescribed the drug fluoxetine by a physician, Hageseth unknowingly provided the drug to McKay for the first time.

“I knew I was stepping outside the bounds,” he said. “I admit it doesn’t meet the standard of care.”

The practice of prescribing drugs through the Internet and using other technological advancements to provide health care is known as telehealth, and Hageseth’s lawyer, Carleton Briggs, says that form of care is in grave danger after his client’s conviction.

“The ramifications of this case are huge,” said Briggs, a California attorney.
“What happens if a California patient goes outside California and wants to be treated? My advice to that doctor is to deny treatment.”

Prosecutors in San Mateo County, however, see the case as an example of protecting residents in their state from an unlicensed doctor and as a reminder to doctors to do what they already should be doing: meeting with patients face-to-face before prescribing drugs.

“Anyone should be concerned about prescribing drugs to someone they’ve never met or someone they’ve never examined their medical history,” said Karen Guidotti, an assistant district attorney in San Mateo County.

Considering suicide

After almost 11 years of marriage, Hageseth and Laurel have been in the public eye and endured hardships, but none greater than the one they are facing now.

The Hageseths have nearly gone broke fighting the criminal and civil allegations since 2005 and the strain took its biggest toll on Hageseth in November.
While the outcome of the criminal charges against him was still uncertain, Hageseth underwent open-heart surgery and is still taking medication to treat his heart condition.

Dealing with financial, legal and health problems, the Hageseths said they are doing their best to cope with the mental damage as well.
“Each of us has seriously considered our own suicides,” Hageseth said.
Laurel Hageseth says she’s been taking for about 20 years to treat depression. Hageseth says he’s taken medication for about 15 years and that he “would not be alive if not for medication.”

“I’m draining Chris trying to make sense of it all,” Laurel Hageseth said of her mental anguish. “I’ve felt demanding.”

And while his wife wor-ries about depleting his emotions, Hageseth worries about his wife’s financial well-being.

“I’ve had thoughts that the only way this woman can have financial wealth in the future is for me to die and her collect on the life insurance,” Hageseth said.

Still dreaming big

Despite his well documented past and a new label as a convicted felon, Hageseth is looking for donors to fund Depression Care Access, Inc., a 501(c)3 nonprofit organization focused on providing financial assistance through the Internet to uninsured and underinsured Americans dealing with symptoms of depression.

The project would allow people to take an online screening test for depression and provide vouchers to take to a physician.

A $50 voucher would pay for an initial visit to a doctor, where recipients would bring the results of their online tests, and the doctor would make a diag-nosis and prescribe treatment.

A $25 voucher would pay for a second visit, where the doctor would determine if any changes in treatment were warranted.

Recipients would also receive a list of pharmacies that charge about $5 for a month’s supply of the prescribed medication.

“I am not going to let my life only have the meaning of the events in California,” Hageseth said, acknowledging a tough road for a convicted felon.

“There’s a large history of people who have done wrong and turned around and did right,” he said.

Help for low-income people with mental health issues is a void that needs to be filled, said Jill Golke, program manager for the Health District of Northern Larimer County’s Commu-nity Mental Health and Substance Abuse Partnership.

“It can be a struggle for people to find those ser-vices if they are underinsured or don’t have insur-ance,” Golke said. “But in our community we do have resources that people can access to help them find services.”

While there may be a need for the services DCA would offer, Hageseth said if he is sentenced to jail time rather than an alternative sentencing unit, the project will fail.  Alternative sentencing is a possibility, but will have to be determined by Larimer County Sheriff Jim Alderden, Guidotti said.

Alderden said he wouldn’t allow Hageseth to serve his time in jail unless the county is compensated for the costs. He also said he has not had any communication with anyone from the California judicial system.

A June 5 hearing in San Mateo County in California will determine a date for Hageseth to surrender.

Alderden said he’s not exactly sure how it will be determined if Hageseth will serve jail time or serve through work release or weekend work programs because he’s never encoun-tered this situation before.

While the situation is in limbo and Hageseth doesn’t have say in the matter, he says he just wants a chance to make DCA succeed.

“Let me make my company work and let me save some lives,” he said.

Eventually Hageseth’s medical license was stripped ­ a decision he says caused his life to spiral out of control.

In 2001, the Colorado Court of Appeals gave him his license back, but Hageseth says his reputation was ruined and he started conducting medical studies before deciding to fill online pre-scriptions through JRB Solutions, Inc.

“My decision to start prescribing online was for two reasons: I needed to make a living,” Hageseth said in an interview with the Coloradoan at his Fort Collins home last week. “And two: Because there are 71 million people who don’t have health insurance or their coverage is so limited they can’t make an appointment. … In my mind I was doing something good.

While working for JRB Solutions, Hageseth would only refill orders and relied on the integrity of those seeking medication not to lie on questionnaires.

And when McKay lied on his form saying he had previously been prescribed the drug fluoxetine by a physician, Hageseth unknowingly provided the drug to McKay for the first time.

“I knew I was stepping outside the bounds,” he said. “I admit it doesn’t meet the standard of care.”

The practice of prescribing drugs through the Internet and using other technological advancements to provide health care is known as telehealth, and Hageseth’s lawyer, Carleton Briggs, says that form of care is in grave danger after his client’s conviction.

“The ramifications of this case are huge,” said Briggs, a California attorney.
“What happens if a California patient goes outside California and wants to be treated? My advice to that doctor is to deny treatment.”

Prosecutors in San Mateo County, however, see the case as an example of protecting residents in their state from an unlicensed doctor and as a reminder to doctors to do what they already should be doing: meeting with patients face-to-face before prescribing drugs.

“Anyone should be concerned about prescribing drugs to someone they’ve never met or someone they’ve never examined their medical history,” said Karen Guidotti, an assistant district attorney in San Mateo County.