This is the first in a series of posts outlining the major legal issues associated with internet pharmacy prosecutions.
Criminal Defense Attorney Analysis of Internet Pharmacy, Prescription, and Drug Law
Criminal Defense Attorney Analysis of Internet Pharmacy, Prescription, and Drug Law
This is the first in a series of posts outlining the major legal issues associated with internet pharmacy prosecutions.
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This is a very helpful analysis, and I’m looking forward to the next two blog posts on this topic. In response to your question about where the DEA gets the idea about a doctor-patient relationship being required, I think it’s helpful to look to United States v. Moore, 423 U.S. 122 (1975) (at least, the DEA looks to this case). On the one hand, Moore is, as far as I know, still good law, and in that case — old as the case is — Dr. Moore was prosecuted for, among other things, not having a proper physician-patient relationship with those he wrote prescriptions to and for. On the other hand, it’s not a recent case (which may or may not matter in court) and one can argue the extent to which the facts are on point today. It’s difficult to argue that they aren’t on point at all, however.
Additionally, I respectfully disagree with the characterization of the Federation of State Medical Board’s position on this topic. I think that their Rx Beat newsletter (http://www.fsmb.org/pdf/NCIP_Newsletter_RX-Beat_Vol2_Issue3.pdf, for one example) and other statements fairly well establish that organization’s discomfort with online consultations — something that we’ll blog about on our end at http://legitscript.com.
That said, this is a very helpful and timely set of blogs. There’s no question that there’s a lack of clarity on some issues related to online pharmacies, and regardless of what side you fall on on this issue, the lack of clarity doesn’t do anybody any good. Well done.
Hi John,
I completely agree that the FSMB is very concerned with online consultations. In fact, I think the FSMB would go so far as to argue that a doctor is negligent for performing them. However, I think one would be hard pressed to argue that, despite the negligence, a doctor-patient relationship isn’t created when their very guidelines expressly say that online consultations do in fact create such relationships:
“[a]lthough the Board recognizes that it may be difficult in some circumstances, particularly in an online setting, to define precisely the beginning of the physician-patient relationship, it tends to begin when an individual seeks assistance from a physician with a health-related matter for which the physician may provide assistance. However, the relationship is clearly established when the physician agrees to undertake diagnosis and treatment of the patient and the patient agrees, whether or not there has been a personal encounter between the physician (or other supervised health care practitioner) and patient.”
FSMB, Model Guidelines for the Appropriate Use of the Internet in Medicine Practice, p. 4. (http://www.fsmb.org/pdf/2002_grpol_Use_of_Internet.pdf)
Thanks for the comment, and I look forward to your blog post on the subject.
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