The trouble with telemedicine

 At the Weeks Clinic, we do not do telemedicine for these reasons: ——————————————————————— Tuesday, December 30, 2008 (SF Chronicle) Father blames son’s suicide on ‘telemedicine’ Bob Egelko, Chronicle Staff Writer (12-29) 17:50 PST SAN FRANCSICO — In August 2005, John McKay, a 19-year-old Stanford student and former high school debate champion, committed suicide by rolling up the windows in a car at his mother’s Menlo Park home and piping in exhaust fumes. In the next few weeks, a Colorado doctor who had prescribed a generic form of Prozac for McKay after receiving his request over the Internet, without ever seeing or examining him, will go on trial in Redwood City on possibly precedent-setting charges of practicing medicine in California without a license. A conviction of Dr. Christian Hageseth, 67, “would send a clear message to those individuals who are blindly writing prescriptions to patients they know nothing about,” said the youth’s father, David McKay, a former Stanford professor now living in Colorado. They would have to ask themselves, he said, “whether quick and easy money is worth the risk of a criminal conviction and permanent loss of their medical license.” Hageseth’s lawyer, Carleton Briggs, sees the issue differently. The case may determine, he said, whether California can reach across state lines to prosecute practitioners of “telemedicine,” an increasingly common source of health care. “A lot of medication is prescribed over the Internet,” Briggs said. “Can California regulate it in this fashion? … No out-of-state telemedicine provider has ever been jailed for practicing medicine in California.” So far, though, courts have rejected Briggs’ attempts to get the charge dismissed, including a civil suit claiming the prosecution is an unconstitutional attempt by California to regulate interstate commerce. A San Mateo County Superior Court judge threw the suit out Dec. 17, but Briggs said he’ll raise the issue in an appeal if Hageseth is convicted. No federal regulation The case has already had a legal impact. In a May 2007 ruling against Hageseth, the First District Court of Appeal in San Francisco said a California county can prosecute someone who writes a prescription in another state for a Californian, knowing that the medicine will be delivered in this state. In the absence of any federal regulation of unlicensed drug prescription and sales over the Internet, “the denial of state jurisdiction to punish the practice would provide the unscrupulous physicians who engage in it even greater freedom to do so,” said Presiding Justice J. Anthony Kline. He noted that state law allows out-of-state doctors to practice “telemedicine” through the Internet or interactive audio or video transmissions, as long as they act in consultation with a licensed California physician. San Mateo County authorities were alerted to the case by the state Medical Board, which receives nearly 20 complaints a year about Internet prescriptions, the board’s executive director, David Thornton, said in an April 2007 court declaration in Hageseth’s case. At first, he said, the prescriptions were mostly for “lifestyle drugs” such as Viagra and medication to stop hair loss, but lately they’ve included more addictive and dangerous substances. Licensed California doctors can be disciplined in such cases for failure to conduct an appropriate examination before prescribing, Thornton said. And any prescriber, licensed or not, can be fined as much as $25,000 per incident. Enforcement of civil penalties in other states is often problematic, however, and criminal prosecution – or even the threat of prosecution – is “a critical element of the board’s efforts to deter such Internet prescribing,” Thornton said. McKay orders drug online John McKay had just completed his freshman year at Stanford in June 2005 when he ordered 90 capsules of the antidepressant fluoxetine, the generic version of Prozac, from the India-based Web site In a questionnaire that accompanied the order, he said he would use the drug to treat “adult attention deficit disorder in relation to depression” and also said he was not suicidal. The site operator forwarded the order to a Texas company, JRB Solutions, which relayed it to Hageseth, its physician contractor in Fort Collins, Colo. Hageseth quickly filled the prescription without contacting McKay and returned it to JRB, which had the pills shipped to Menlo Park from a pharmacy in Mississippi. At the time, the U.S. Food and Drug Administration required Prozac and similar antidepressants to carry warning labels saying they increased the risk of suicidal thoughts and behavior in children and adolescents. The FDA asked manufacturers in 2007 to expand the warning to cover patients ages 18 to 24 in the early weeks of treatment, but that won’t affect the criminal case against Hageseth, who is charged only with practicing medicine illegally and not with prescribing the wrong drug or causing McKay’s death. Traces of fluoxetine were found in McKay’s body after his death, along with alcohol. In a civil suit by his parents against the Mississippi pharmacy, JRB and Hageseth, however, a federal judge said experts on both sides of the case had concluded the drug was not a cause of his death. McKay’s father remains unconvinced. “I have strong opinions about how the drug was affecting my son. You can’t do a post mortem diagnosis, but I think it was driving him off the deep end,” said David McKay, who was a Stanford professor of molecular biology at the time of his son’s death and is now a research professor at the University of Colorado. “The real problem is negligence on the part of the physician,” he said. “Any competent psychiatrist talking to (John McKay) for five minutes on the telephone would have realized something was wrong and would have encouraged him to seek direct help.” McKay’s parents settled their suits against the pharmacy and JRB and dropped their suit against Hageseth, who surrendered his Colorado medical license after coming under investigation in the youth’s suicide. The prosecutors’ challenge In contrast to the civil suit, which would have required the parents to prove that Hageseth’s actions contributed to their son’s death, San Mateo County prosecutors must show only that he practiced medicine in California without a license. A conviction can be punished as either a misdemeanor, with as much as a year in jail, or as a felony, with as much as three years in prison. The trial is scheduled Feb. 9, but defense attorney Briggs said he will ask for a 30-day delay because Hageseth recently underwent open-heart surgery. He said it’s far from an open-and-shut case – it’s not clear, he said, that John McKay was even in California when he sent the order, or that the law makes it a crime for an out-of-state doctor to fill a California prescription. What’s more, Briggs said, any conviction under state law will be constitutionally dubious. “The Internet is an instrument of interstate commerce,” he said. “The federal government has to regulate it if it is to be regulated.” Deputy Attorney General Catherine Rivlin said the appeals court laid that argument to rest by observing that doctors who prescribe for patients in California, without the required license, subject themselves to prosecution in the state. “How they were connected, whether it’s a phone line or a computer, totally doesn’t matter,” Rivlin said. Besides, she said, “There are certain parts of medicine, like prescribing dangerous drugs, that can’t be done over the Internet. Medicine’s still primarily a hands-on business, or it should be.”

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