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Hageseth v. Superior Court:
Interesting line from a California state court criminal law decision handed down today: "it makes no difference that the charged conduct took place in cyberspace rather than real space."

  The case, Hageseth v. Superior Court, involved a Colorado doctor who participated in an online pharmacy. The doctor, Hageseth, issued an online prescription to a patient in California, and was then charged criminally with practicing medicine without a license in California. Hageseth claimed that he couldn't be charged with a California crime because he was beyond California's jurisdiction, bolstered at least in part by what looks like a dormant-commerce-clause-argument-in-disguise: specifically, that it would create all sorts of trouble for California to try to regulate such conduct beyond its borders.

  The court disagreed, finding that under traditional principles of extraterritorial application of criminal law the state of California could reach the doctor's conduct. The fact that the doctor's conduct took place "in cyberspace" -- that is, using e-mail and websites -- was irrelevant. Next time maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail.

  Thanks to Tom Watson for the link.
Owen Hutchins (mail):
The actual activity may have occurred in "cyberspace", but the person got a real prescription in California.
5.21.2007 11:30pm
zooba:
This is interesting, as there are surprisingly few cases on the scope of criminal jurisdiction. California has a series of long-arm type statutes for criminal jurisdiction (as opposed to its "due process clause"-based civil jurisdiction).

It seems like this decision, like the child support decisions it is based on, is fundamentally flawed under Strassheim v. Daily because there is no intent to cause harm within the state. Simply put, one is not intending to cause harm within a foreign state if the act is neither mallum per se nor prohibited within the state the person is actually physically within. Therefore, you cannot intend to cause harm by an omission of a legal duty that is soley exists within that state, because you have no duty to it when physically outside the state.
5.22.2007 12:58am
Lior:
(IANAL) By the same logic, if a physician in Nevada writes a prescription to his patient (who happens to be visiting California) and then mails the prescription to California, the doctor has practiced medicine in California. But this is plain silly. It may be that the prescription should not have been written, but if so the problem occured in Nevada -- the patient may be guilty of trying to get a bad prescription filled, but the doctor has no control over where his patient is taking the prescription!

In fact, if I take a prescription from my doctor and try to fill it out-of-state, am I, or is my doctor, committing a crime?
5.22.2007 1:12am
Fub:
Lior wrote at 5.22.2007 12:12am:
(IANAL) By the same logic, if a physician in Nevada writes a prescription to his patient (who happens to be visiting California) and then mails the prescription to California, the doctor has practiced medicine in California. But this is plain silly. It may be that the prescription should not have been written, but if so the problem occured in Nevada -- the patient may be guilty of trying to get a bad prescription filled, but the doctor has no control over where his patient is taking the prescription!
The court did distinguish a related factual scenario in footnote 25:
25 With respect to this issue, it is appropriate to distinguish the facts of this case from the common situation in which, while in another state, a California citizen receives medical treatment from a physician, licensed there but not in California, who writes her a prescription knowing she is a California resident intending to return to this state. Nothing in this opinion is intended to address that situation.
5.22.2007 2:12am
David Walser:
The court did distinguish a related factual scenario in footnote 25:

25 With respect to this issue, it is appropriate to distinguish the facts of this case from the common situation in which, while in another state, a California citizen receives medical treatment from a physician, licensed there but not in California, who writes her a prescription knowing she is a California resident intending to return to this state. Nothing in this opinion is intended to address that situation.


I know it is bad form to comment without having read the case, but I don't think this addresses the issue raised by Lior. Suppose a Utah resident falls ill while vacationing in California. Would the Utah resident's doctor be practicing medicine in California if she were to call in a prescription for her patient to a California pharmacy? In footnote 25, the California resident is outside California when treated by a non-California doctor. In my version of Lior's hypothetical, the non-California doctor "treats" (diagnosis of aliment and prescription of treatment) her patient while the patient is IN California.

I have to think that this kind of thing happens regularly. While on vacation in Idaho, our daughter suffered complications from some minor surgery she had had a few days before we left Arizona. We called her surgeon and she called in a prescription to an Idaho pharmacy. By this act, did the surgeon subject herself to liability in Idaho for practicing medicine without a license? I would not be surprised to learn that she was subject to prosecution for her actions, but I would not agree with that result from a public policy perspective. It would have been a lot more complicated (and expensive) for our child to receive proper medical attention had it been necessary for an Idaho doctor to have seen her before a prescription could be filled.

In Hageseth v. Superior Court, the doctor could have been charged under Colorado law if the doctor did not have sufficient contact with the patient to properly prescribe medicine. Granted, the California authorities may have had to rely on Colorado to pursue such a prosecution, but it is not as if no remedy were available.
5.22.2007 6:01am
billb:
Fub: Footnote 25 reminds me of the current situations with software patents: Somehow adding "On the Internet" infront of things changes everything!
5.22.2007 10:16am
Scaldis Noel:
Two questions:
1) Is it legal for a pharmacy to fill a prescription that has an address/license number of an out-of-state physician on it?
2) Is it legal for an individual to try to have a prescription filled in a different state than the one in which the prescription was written?

I do not know the answer to either question, and the details of the answer probably vary from state to state, but I would be interested in knowing the answers to them.
5.22.2007 11:21am
Fub:
David Walser wrote at 5.22.2007 5:01am:
I know it is bad form to comment without having read the case, but I don't think this addresses the issue raised by Lior.
I agree that FN 25 doesn't address the same issue raised by Lior. That's why I used the adjective "related", as in "not the same but within the same genera".

As far as I can tell from reading the case, without that footnote, any physician prescribing for a traveling Californian outside the state would have to have a California license, if there was any reasonable apprehension that the Californian would carry the prescription to California. It is unclear whether the court would extend a similar exception to an out-of-California physician who prescribes for an out-of-California patient who happens to travel to California.
5.22.2007 2:23pm
Deoxy (mail):
Why aren't doctors' licenses given Full Faith and Credit? That would solve so many problems...

And I agree with Fub - this reasoning is highly problmatic, for all the reasons given. Also, that little footnote is SO nice... but it would be much nicer if they would actually DIFFERENTIATE that situation from this one (or any other, other than just to hand-wave it away).
5.22.2007 2:33pm
Dilan Esper (mail) (www):
By the way, doesn't this strike anyone else as a pretty useless expenditure of public resources? Be serious here-- nobody's ever going to put a dent in the online pharmacy trade, judging by the spam in my e-mail box.

The truth is, the Internet forces us all to be more libertarian, whether we want to be or not. (Personally, I'm not that troubled by online prescription drug sales, but am very troubled by buy-sell-rent ads that would otherwise violate the Fair Housing Act. Nonetheless, all of these things are going to happen online.) Many laws that could be relatively straightforwardly enforced offline, like copyright, have become almost unenforceable, and laws that never could be effectively enforced, such as prescription drug abuse protections, have lost all hope.

So instead we get prosecutions that single out one or two people and make examples of them, but don't do anything to stop people from doing what they want online.
5.22.2007 5:48pm
Mary Katherine Day-Petrano (mail):
Well, one thing I know people cannot do what they want online is obtain their bar admission in either California or Florida. And that goes hand-in-hand with not being able to enter these states' courthouses online in a total virtual manner, no paper, no travel trips anywhere.
5.23.2007 10:32am
Mary Katherine Day-Petrano (mail):
"Why aren't doctors' licenses given Full Faith and Credit? That would solve so many problems..."

I would be interested in more discussion about this. How does giving a dr's license Full Faith and Credit get around a Colo dr. not being licensed in Cal. in the situation posed by Hudspeth? The dr. is still not licensed in Cal. He can still be prosecuted in Cal. under Hudspeth.

It seems to me, the way to get around the problem posed by Hudspeth is a National dr.'s licensure, not Full Faith and Credit. Am I wrong?
5.23.2007 10:44am