Wednesday, May 23, 2007
Colorado Doctor Who Wrote Prescription for Californian May Be Prosecuted for Unlicensed Practice—Court
By KENNETH OFGANG, Staff Writer
An out-of-state physician who wrote a prescription, knowing that the patient was a California resident and that the drug would be sent to him in California, may be prosecuted in state court for practicing without a California license, the First District Court of Appeal has ruled.
Div. Two Monday denied a writ petition brought by Christian Ellis Hageseth, a Colorado physician seeking dismissal of charges he violated state law by writing a prescription for the generic version of Prozac. The case was filed by the San Mateo District Attorney’s Office last year following an investigation by the Medical Board of California.
The board reported that Hageseth wrote the prescription for John McKay, a San Mateo County resident who ordered the drug over the Internet. The Web site operator, located outside the United States, forwarded the order to a Florida company, which forwarded it to the doctor along with McKay’s responses to a health questionnaire, the board said.
Hageseth issued the prescription and sent it to the Florida company, which forwarded it to a pharmacy in Mississippi, which sent the drugs to McKay at his Menlo Park address, which was also on the questionnaire. McKay committed suicide several weeks later, allegedly while intoxicated by alcohol and with a measurable amount of the drug in his blood.
The defense moved to quash the arrest warrant and dismiss the case on the ground that California has no jurisdiction because neither Hageseth or any agent of his engaged in any criminal conduct within the state.
San Mateo Superior Court Judge Carl Holm, while acknowledging the possibility of the defendant prevailing at a later stage, said there might be jurisdiction and denied the motions. The defendant then filed a writ petition and obtained a stay, which was dissolved as a result of Monday’s ruling.
Presiding Justice J. Anthony Kline said the trial judge was correct.
Kline cited Penal Code Secs. 27(a)(1), which provides that a person is liable if he or she commits “in whole or in part, any crime within this state,” and 778, which provides:
“When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is committed.”
Sec. 778, the presiding justice explained, was enacted in 1872, six years after the state high court held that a Wells Fargo agent in Nevada could be prosecuted in California on charges he drew telegraphic checks upon his principals in San Francisco, in favor of his San Francisco broker and for his own benefit.
The statute has been subsequently applied, Kline noted, to permit prosecution of a father living in another state for failure to support his child living in California, and of another father who violated a California court order by taking his children out of the country and secreting them in Serbia.
Those cases, the presiding justice said, relied upon what is called the “objective territorial principle” or “detrimental effects” theory of extraterritorial jurisdiction—if the activity causes a substantial detrimental effect in California, it can be prosecuted here.
“[I]t is not necessary to the ‘detrimental effect’ theory of extraterritorial jurisdiction that the defendant be physically present in this state during some portion of the time during which his alleged criminal act took place...or that he act through an agent physically present in this state... or that there exist a statute or judicially declared exception extending the state’s territorial jurisdiction for the particular crime with which the defendant is charged,” Kline wrote.
These traditional theories of jurisdiction should apply no differently when it comes to Internet-related crime, the jurist went on to say.
“While Internet technology can create new realities courts may be compelled to accommodate, those who claim their Internet-related conduct should be exempt from a traditional legal principle because the conduct is not within the paradigm for which the rule was designed bear the burden of establishing the fact,” Kline wrote. “Petitioner has not done so.”
Hageseth is not accused of violating some “obscure” or “unusual” California law, the presiding justice said, but knew or should have known that authorities in this state would frown upon his writing a prescription for a California resident without being licensed here.
The attorney general, he noted, filed an amicus brief explaining that the Medical Board receives a significant number of complaints regarding unlawful prescription of drugs over the Internet by out-of-state doctors and has had “some success” in constraining such activity.
Kline also rejected the argument that fear of prosecution will deter out-of-state physicians from putting useful information on the Internet.
California law, he noted, expressly allows doctors licensed in other jurisdictions to engage in “telemedicine,” defined as “health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications,” and also permits out-of-state doctors to consult with California physicians as long as the in-state doctor remains primarily responsible for the patient’s care.
The case is Hageseth v. Superior Court (People) RPI, 07 S.O.S. 2537.
Copyright 2007, Metropolitan News Company