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Brief - Illegal Telemedicine Drug Sale Not Deceptive Trade Practice - State ex rel. Stovall v. Confimed.com, L.L.C., 38 P.3d 707 (Kansas 2002)

This appeal presents the narrow question of whether a nonresident medical doctor who was later enjoined from prescribing or dispensing prescription medicine within the state of Kansas also committed unconscionable acts under the Kansas Consumer Protection Act (KCPA), K.S.A. 59-623 et seq., when he dispensed Viagra to Kansas residents without any physical examination or direct contact other than through an out-of-state internet site.  The drug was sold through a WWW site, www.ConfiMed.com, which, along with the physician, have also been the subjects of enforcement actions in other states.  The Kansas Attorney General conducted a "sting" operation to document that individuals, including a minor, could purchase Viagra from the website, which was operated by Howard J. Levine, a state of Washington medical doctor.  The physician and WWW site were barred from prescribing and dispensing drugs in Kansas in violation of the pharmacy and medical practice acts.  The state sought civil penalties under the KCPA, which resulted in this lawsuit.  The opinion is silent on why or whether the state sought prosecution under the medical practice act for unauthorized practice of medicine.

The WWW site directed potential buyers through numerous pages of information, including waivers, general information about the drug, credit card information, and an online consultation regarding medical and sexual history. The first page described the online consultation process as well as the potential for international consultation. The next page was a waiver, stating the reader releases "this service" from all liability associated with the reader's participation in "the Viagra program." To continue, the reader agrees he or she is over 21 years of age, does not live in a state that limits access to medication over the internet, has read all available information from the Viagra manufacturer about the potential side effects, is solely interested in personal use of the product for "treatment of compromised sexual performance," and has recently performed "complete annual history physical examinations and appropriate laboratory studies" to ensure good health. The waiver appeared to have a link to the information available from the pharmaceutical manufacturer. The general information page on the website stated the recommended dosage of Viagra and its indications and warned that individuals taking organic nitrates must not take Viagra.

To state a claim under the KCPA, the state must establish that the transaction was deceptive.  The heart of the state's claim seems to be that since that transaction was illegal, it was necessarily deceptive.  The trial court disagreed, reviewing the transaction under statutory requirements for deception.  It found that the information on the WWW site was correct, and that in order for the minor to purchase the drug, he had to falsify the information on the form.  The "medical evaluation" included a very specific disclaimer explaining its limitations and that it was not a substitute for a proper medical examination by a physician.  The court found that the drug that was shipped was what was represented and that the charge was also as represented.  The trial court concluded that the transaction was not deceptive, and this ruling was affirmed by the Kansas Supreme Court.

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