State Chasing Web Medics Who Prescribe Sight Unseen

Attempts to stop U.S. doctors and pharmacies from issuing prescriptions online without physical examinations often have amounted to tortuous, low-speed chases through cyberspace after elusive targets.

Now, California regulators are stepping up their efforts. Last month, they revoked the license of a cyber doctor accused of issuing 11,000 illicit prescriptions, and last week they levied $48 million in fines against six out-of-state prescribers.

But this state, along with others, faces daunting obstacles in the shadow world of online prescribing. Not the least among them are the growing popularity of no-fuss prescriptions, the difficulty of prosecuting doctors across state lines, the limited resources of state medical and pharmacy boards and spotty or antiquated state regulations.

Even though the national Federation of State Medical Boards adamantly opposes online prescribing without proper examination, only 22 individual boards in the U.S., including California’s, have specifically prohibited it. A few states have passed legislation against online prescribing or have tried to prosecute doctors, with mixed success, under existing consumer protection or criminal laws.

One barrier is the apparent belief among some doctors that there is nothing wrong with writing a prescription without actually seeing the patient.

“I did not do anything wrong in treating these patients,” Dr. Jon Opsahl of Colton said last month, after he became the first physician in California whose license was revoked for improper online prescribing. “There was no physical exam that could have been done on these patients that would have altered the treatment.”

Opsahl, who prescribed to 1,500 people a range of medications from Viagra to Vicodin, insisted that he had reviewed extensive medical records sent by his patients.

Regulators argue, however, that there is no consistency in screening from one online pharmacy to another, and that patients are more likely to suffer reactions or complications if not examined thoroughly. Most pharmacies ask patients to fill out questionnaires, but incomplete, implausible or apparently disqualifying answers are sometimes overlooked.

In one case in Kansas, a state investigator’s son -- who acknowledged he was 16 -- was prescribed Viagra even though he had not filled out sections of an online questionnaire and was under the site’s required age of 21, regulators there said. In the same case, a female investigator who ordered Viagra under her own name was advised to refile her order under a male name.

In another case, an Ohio regulator said he ordered medication using the name of his cat.

There are thousands of U.S. Web sites offering Viagra, the weight-loss drug phentermine and other popular drugs without exams, but all are operated by only 100 or so pharmacies, according to the National Assn. of Boards of Pharmacy. The difficulty for regulators is that these suppliers create and disband Web sites faster than officials can track them.

Because of that problem, it’s nearly impossible to quantify how much money the online prescribers raise or how many Web sites there are, said Elizabeth Boehm, an analyst with Forrester Research, a technology research firm based in Cambridge, Mass. But she said her e-mail inbox is “inundated with offers” -- as are those of other computer users nationwide.

Doctors, who collect a consultation fee for each patient, may or may not be in the state where the patient lives. That’s a problem because the practice of medicine is not regulated nationally; it is regulated by states.

“We just have to face up to the fact that the old rules -- where everything stops at the state lines -- may no longer be applicable,” said Stuart Biegel, a UCLA professor who wrote a book about how the Internet affects the legal system.

Oversight is haphazard, and sanctions vary. In the last four years, state medical regulators have levied millions of dollars in fines, revoked six physicians’ licenses and dragged dozens of doctors into court. Pharmacy regulators, who oversee drugstores, have issued letters of reprimand or other sanctions against nearly 50 online operators in 20 states.

But many states have yet to penalize a single doctor or pharmacy. And the efforts by others to stem the illicit trade appear to have had little effect.

Carmen Catizone, executive director of the National Assn. of Boards of Pharmacy, said pharmacy boards are hampered by medical boards that won’t discipline the doctors.

“If there’s a physician involved who is ghost-signing these prescriptions, it goes to the medical boards,” he said. “In some states, they don’t have clear-cut language to say this is illegal or below the standard of practice.”

California is trying to take a strong stand. In 2000, it specifically prohibited doctors from prescribing drugs or devices without exams. Its fines are the stiffest in the nation -- as much as $25,000 per infraction.

The state’s $48 million in fines against the out-of-state physicians is believed to be the largest set of penalties ever levied by a medical board. (The state pharmacy board has, however, issued higher fines for online prescribing.)

The out-of-state doctors, who acted individually, allegedly wrote almost 2,000 prescriptions for such drugs as Viagra, the weight loss drug Xenical and the anti-balding medication Propecia to patients sight unseen.

Regulators say they hope the fines will deter other doctors, although it is unclear whether the sanctions will survive legal challenges.

An attorney for two of the physicians is already arguing that California does not have jurisdiction, and some legal experts agree. Court challenges could prevent the state from collecting the fines for years, if ever.

To a certain extent, California and other states are up against the will of consumers, the very people they are trying to protect. Many people are eager to obtain drugs for such conditions as baldness, obesity and impotence and they would rather not ask face-to-face, say regulators and online prescribers. Within the industry, the medications are sometimes called “embarrassment drugs.”

“It’s very simple. People don’t want to go to the doctor” and talk about impotence “when they know that, in the end, the doctor’s just going to prescribe Viagra anyway,” said the owner of www.online-pharmacies.ws.

The owner spoke on the condition of anonymity for fear of being sanctioned by authorities. “The government’s trying to shut us all down,” he said.

Diet pills are the most popular prescriptions on the Internet, followed closely by Viagra, the site owner said. Californians are his biggest customers. “If you want to give consumers what they want, they want us,” he said.

Such transactions are distinct from those in which doctors use the Internet to consult and provide prescriptions to patients they have examined, which is both legal and popular. Analyst Boehm said drugstores and pharmacy benefit managers handling such business will earn $6.7 billion this year.

Dr. Sidney M. Wolfe, director of Public Citizen’s Health Research Group, a consumer advocacy organization, said states aren’t doing nearly enough to halt the illicit trade.

“Behind every one of these ads -- the U.S.-based ones -- are lurking illegal actions by pharmacists and physicians and an appalling lack of action by pharmacy and medical boards,” Wolfe said.

“One doctor is fined here, two fined there, six on the West Coast, five in a Midwestern state and so what?” Wolfe said. For every illegal prescribing action that gets publicity, “there are many, many more.”

Regulators in various states, including California, acknowledge that they are catching and punishing only a fraction of the doctors and pharmacies involved. In part, that’s because they don’t have the manpower to chase online doctors -- especially if results are uncertain and patients aren’t complaining. Many cases, at least initially, involve undercover stings, for lack of patient “victims.”

States’ methods are different, but they share a common sense of frustration.

Kansas led the way in 1999 when the state attorney general’s office sued six doctors and several online pharmacies for violating its consumer protection act. Most of the doctors settled with the state and agreed to stop prescribing online.

Dr. Howard J. Levine fought the case to the State Supreme Court, which found that, while his actions were unsavory, he had neither misled nor harmed anyone.

Levine had been accused of violating the consumer protection act’s prohibition against “unconscionable behavior.” His prosecution was based in part on the case of the 16-year-old boy who ordered Viagra from Levine’s Web site.

Levine’s attorney, James Jarrow of Overland Park, Kan., now fields calls from attorneys around the country handling similar cases, advising them not to be daunted by a prosecutor’s public display of high dudgeon.

“Sometimes the prosecution tries to win cases by what I call the aura of the case. They say over and over, ‘This is bad, this is bad, this is bad.’ ”

“I tell people these cases are winnable,” Jarrow said.

A new attorney general is in office in Kansas; the office has no new suits pending.

“Unfortunately, Kansas law doesn’t have other prohibitions we could have charged them under,” said Whitney E. Watson, a spokesman for the attorney general’s office. “Until the Legislature changes that, there’s not much we can do.”