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California Charges Colorado Telemedicine Doctor with Crime.

By Greg Piche'

On April 20, 2009, the People v. Hageseth is scheduled to commence trial in San Mateo, California. The Defendant, Christian Hageseth, M.D., a physician formerly licensed in Colorado is charged with violation of Section 2052 of California?s Business and Professional Code, which prohibits the practice of medicine in California without a license.  In June, 2005, Dr. Hageseth provided an on line prescription for generic Prozac to a depressed Stanford student, John McKay, who later killed himself by carbon monoxide poison while intoxicated. Traces of the Prozac were also found in his blood stream.

Dr. Hageseth has already challenged the jurisdiction of the State of California to try him for a criminal offense because he wasn?t aware that we was violating California law and had no intent to injure anybody in California.  He only reviewed a questionnaire filled out by Mr. McKay and entered a prescription which was filled by a pharmacy located in Mississippi and mailed to Mr. McKay in California. McKay had no direct contact with Dr. Hageseth who lives in Ft. Collins, CO.   The California courts determined that California had criminal jurisdiction over Dr. Hageseth under the ?detrimental effects? theory espoused by the United States Supreme Court in Strasheim v. Daily, 211 U.S. 280 (1911) (state courts may exercise jurisdiction over criminal acts committed outside of state ?but are intended to, and do, produce harm within the state.?

The most commonly used analogy for this kind of jurisdiction is the person shooting another with a rifle when the target is located in another state.  The state where the harm occurred would have jurisdiction over the person committing the harmful act in another state. Dr. Hageseth and his affiliate internet pharmacy handlers were sued by the McKay family and there was a settlement by the internet company and the McKays in 2007 and the suit against Dr. Hageseth was dropped. Dr. Hageseth voluntarily surrendered his license in 2005. Dr. Hageseth was extradited by California from Nebraska where he was stopped for a speeding violation. He is currently out on bond.

Much concern has been raised about the potential for a balkanized state treatment of telemedicine jurisdiction to substantially impede a health care delivery model that has the potential to improve quality and reduce costs, particularly in medically underserved areas and to disrupt the potential of telemedicine?s growth. There has been a hodge-podge of state statutes and state medical board rules regarding the practice of telemedicine that have the potential of creating a complicated structure of compliance for physicians participating in telemedicine.

In October, 1995, the Federation of State Medical Boards adopted model licensure Act that has been adopted by about 8 states permitting the easy, limited licensure of out of state physicians who have an unrestricted license to practice medicine in another state. 21 states require full licensure with significant consultation exceptions and some with emergency and service unavailability exceptions. The state of Oregon recently adopted the FSMB model only to have the state medical board adopt a rule requiring a physician examination by the physician before engaging in telemedicine. One suspects that if this kind of disparate acceptance of telemedicine continues without uniformity within the states, there will be a move to adopt a federal statute to require uniformity and remove the discretion of the states.

Full post as published by Healthcare Law Blog on February 14, 2009 (boomark / email).