The defendants argued that Puerto Rico Telemedicine Regulating Act, Law No. 227 of August 11, 1998, 20 L.P.R.A. §6001 et seq., authorized them to practice telemedicine and, therefore, allowed them to prescribe controlled substances to their internet customers.
The case came before the Court on review of a Magistrate's Report and Recommendation, which concluded that the Telemedicine Law only authorizes the practice of telemedicine when both the physician and the patient are physically located in the Commonwealth of Puerto Rico. The Magistrate concluded that the "Defendants acted outside the scope of professional practice and not for a legitimate medical purpose when they carried out their telemedicine practice in several States other than Puerto Rico without having the proper licenses to do so in those jurisdictions." As characterized by the Court:
Defendants aver in their objections to the Magistrate-Judge's Report and Recommendation that the Superseding Indictment should be dismissed because they acted in conformity with the Telemedicine Law, which allegedly allows physicians to provide prescriptions to persons outside the geographical jurisdiction of the Commonwealth of Puerto Rico. Contrary to Magistrate-Judge Camille L. Velez-Rive's recommendation, Defendants allege that the Telemedicine Law made it unnecessary for them to obtain separate licenses from each of the States where the patients, who consulted them were located. According to Defendants, their conduct does not fall outside the scope of professional practice and constitutes a legitimate medical purpose.
The Court cited 21 U.S.C. § 841(a)(1), which makes it "unlawful for any person knowingly or intentionally… to manufacture, distribute, or dispense… a controlled substance." According to the Court, "although medical professionals are generally permitted to dispense controlled substances, they 'can be prosecuted under §841 when their activities fall outside the usual course of professional practice,'" quoting United States v. Moore, 423 U.S. 122, 124 (1975); United States v. Fuchs, 467 F.3d 889, 899 (5th Cir.2006).
The Court quotes from the Supreme Court decision in Moore, which states that "physicians who departed from the usual course of medical practice were subject to the same penalties as street pushers" and that Congress had intended the CSA to be more, not less, strict. Moore, 423 U.S. at 139. "Thus," according to the Court, "a physician is authorized to dispense controlled substances only if he acts with a legitimate medical purpose and in the usual course of professional practice." Nelson, 383 F.3d at 1233. "Conversely, a practitioner would be unauthorized to dispense a controlled substance if he acts without a legitimate medical purpose or outside the usual course of professional practice." Nelson, 383 F.3d at 1233. The Court noted that "the Courts of Appeal have upheld convictions of physicians and pharmacists for distributing controlled substances over the Internet," citing United States v. Fuchs, 467 F.3d 889 (5th Cir.2004); and United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir.2006). According to the Court:
In prosecutions under §841 involving distribution of drugs that have been prescribed by a licensed physician, the Government is required to prove three elements: (1) that the defendant distributed a controlled substances, (2) that he or she acted intentionally and (3) that he or she prescribed the drug without a legitimate medical purpose and outside the course of professional practice. United States v. Feingold, 454 F.3d 1001, 1006 (9th Cir.2006); United States v. Johnson, 71 F.3d 539, 542 (6th Cir.1995); United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir.1994); United States v. Varma, 691 F.2d 460, 462 (10th Cir.1982).
The Court emphasized that "the issue of whether a physician's conduct exceeds the bounds of professional medical practice, rendering him criminally liable under §841, is one for determination by a jury." Thus, "this is an element of the offense which the Government must prove to the jury, and is not properly the subject of a motion to dismiss." As characterized by the Court, "in essence, Defendants' objections are brought forth to achieve the dismissal of this case based on the theory that they acted with a legitimate medical purpose and in the usual course of professional practice." Defendants' arguments ignore the fact that the indictment in this case is not premised upon any statute or rule of law that specifically precludes the sale of prescription drugs over the Internet. It is, instead, premised upon a theory that the drugs were prescribed and distributed outside the bounds of professional medical practice. This is an element of the offense, which the Government must prove to the jury, and, therefore, is not properly the subject of a motion to dismiss. Consequently, Defendants' Motion to Dismiss must be denied.
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