Hageseth conviction reveals telemedicine practice flaws

The conviction of a Colorado doctor for practicing medicine without a California medical license spotlights a serious flaw in the rapidly expanding world of telemedicine on the Internet.

Christian Hageseth III, a former Fort Collins psychiatrist, pleaded no contest to the charge in a San Mateo County court earlier this month and will be sentenced April 17. Hageseth, 68, faces a possible one-year sentence and a $10,000 fine.

California officials charged Hageseth after he prescribed fluoxetine, a generic form of Prozac, to a 19-year-old man who later committed suicide. Fluoxetine is a drug used to treat depression that can also enhance suicidal tendencies.

Carleton Briggs, Hageseth’s attorney, said that although his client decided to accept a plea bargain in the case for health reasons – Hageseth recently had open heart surgery – he thinks Hageseth had a good defense in the still-evolving and lightly regulated world of Internet pharmacies and online drug prescriptions.

“It’s undisputed that when Dr. Hageseth issued the electronic prescription he was licensed in Colorado and not in California,” Briggs said from his office in Redwood City, Calif. “The question is: Can a doctor licensed in Colorado issue an electronic prescription for a patient in another state? There is no law against issuing an electronic prescription.”

Long-standing practice

Prescribing drugs over the Internet has been going on since the late 1990s and the federal government has largely left it to the states to legislate their own oversight of the practice.

Colorado law is mostly silent on the issue. The Colorado State Board of Medical Examiners in 2000 adopted “guidelines regarding prescribing for unknown patients” that says it is “unprofessional conduct for a physician to provide treatment and consultation recommendations, including issuing a prescription via electronic or other means, unless the physician has obtained a history and physical evaluation of the patient …”

Briggs said he believed Hageseth’s conviction in California will have a chilling effect on physicians prescribing medications via the Internet. He said it is impractical for a doctor licensed in one state to obtain a medical license for every other state where potential patients may be physically located.

California, in its prosecution of Hageseth, took the position that by prescribing for a patient in California, Hageseth was in essence in California when that prescription was written.

Steve Wagstaff, San Mateo County chief deputy district attorney, said California has taken the position that it will not tolerate out-of-state physicians prescribing medications for its residents unless they have a valid California medical license.

“Our belief is the doctor must be licensed in the state where the patient is,” Wagstaff said.

Briggs sees the situation differently. “The question is: Who should regulate the Internet – the federal government or the individual states?”

Briggs says that’s an increasingly important question as federal programs like Medicare and Medicaid are encouraging the use of telemedicine and Internet pharmacies for better access to health care and savings on drug costs.

Wild, wild Web

But for now, the Internet is still a pretty wide-open zone, where Web sites advertise drugs like fluoxetine – not a federally controlled substance but still a drug with potentially deadly side effects – for sale without a prescription. And it’s especially dangerous for children who can buy drugs with little to stop them. A report issued last July by the National Center on Addiction and Substance Abuse said 85 percent of Web sites selling potent prescription drugs do not ask for a prescription from a doctor.

Last October, Congress passed the Ryan Haight Online Pharmacy Consumer protection Act of 2008. Sponsored by Sen. Diane Feinstein, D-California, the law was the federal government’s first comprehensive attempt to better regulate online pharmacies.

But Greg Billings, a spokesman for the Center for Telehealth and E-Health Law, said the regulation of Internet prescriptions remains mostly on a state-by-state basis.

“There have been many attempts over the years to get some kind of commonality among the states and they’re still working on it,” he says, noting that states are reluctant to sign on to a standardized national system.

Jonathan Linkous, CEO of the American Telemedicine Association, said the ATA “does not condone” a physician practicing medicine in a state in which he or she doesn’t have a license. Linkous said the federal government has taken a low profile on the issue up till now but hopes that will change under a new administration. What’s needed, he said, is a more coherent policy between the states in the Internet age.

“We think the states should start working together on their state licensing so it can be more of a fluid system,” he said. “I would say a hodgepodge is a good word for the system we have right now.”

Steve Porter covers health care for the Northern Colorado Business Report. He can be reached at 970-221-5400, ext. 225 or at sporter@ncbr.com.

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