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The Supreme Court of Kansas recently ruled that a nonresident medical doctor who was enjoined from prescribing or dispensing prescription medicine within the state did not commit unconscionable acts under Kansas law when he dispensed the sexual enhancement drug Viagra to Kansas residents without any physical examination or direct contact other than through an out-of-state Internet site. This decision, in the case State ex rel Stovall v. ConfiMed, LLC, now becomes part of the tapestry of law that sheds light on rights and responsibilities flowing from online conduct. Unfortunately, it can be difficult to follow competing state laws, not to mention various federal laws and the laws of other countries. THE ‘VSOURCE’ WEB SITE As part of a sting operation, two individuals, a minor male and an adult female, accessed a Web site called “Vsource.” The site directs the viewer through numerous pages of information, including waivers, general information about Viagra, credit card information, and an online consultation regarding medical and sexual history. The first page describes the online consultation process as well as the potential for international consultation. The next page contains a waiver, stating that 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 undergone “complete annual history physical examinations and appropriate laboratory studies” to ensure good health. The waiver appears to have a link to the information available from the pharmaceutical manufacturer. The general information page on the Web site states the recommended dosage of Viagra and its indications and warned that individuals taking organic nitrates must not take Viagra. The next area of the Web site states that an online consultation is available for patients without a prescription. The site further provides that: “It is in no way a substitute for a general medical history and physical examination determining general good health with special attention to blood pressure and cardio-pulmonary (heart and lung) status.” The site further informs the reader that the fee for the online consultation is $75 and will be charged only if the buyer is approved. The next series of pages viewed by potential buyers is an online consultation form. The minor male and adult female each completed this form. The individuals conceded that when they filled out the online form, they understood the potential side effects of Viagra and that they would be billed $75 for the consultation only if their application was approved and that all information provided was “truthful and complete.” The minor left blank the questions concerning allergies and the taking of other prescription medication and did not indicate that he had any of the 15 specific medical problems listed. He left blank the questions concerning his sexual health and changes in sexual function but did state that he had problems achieving erection and that he had not been evaluated for erectile dysfunction. He stated his date of birth was November 1982. His mother provided him her credit card number and personally supervised the entire order. The adult female filled out the same form, with similar answers. She stated she was a female on her first attempt to purchase the drug. When she was told that she could not place an order as a female, she resubmitted an order under a male’s name. Both the minor male and the adult female received Viagra pills. The name “H. Levine, M.D.” was typed on the pill bottles, and the Web site ConfiMed.com was printed at the top of the labels. Investigations revealed that Dr. Levine was not licensed to practice medicine in Kansas, nor was ConfiMed.com licensed to practice pharmacy in Kansas. The parties were billed in accordance with the charges they had agreed upon for the pills, postage, and consultation. STATE LEGAL ACTION The Kansas Attorney General on behalf of the State of Kansas and the Kansas Board of Pharmacy sued ConfiMed.com and Dr. Levine, alleging that he committed unconscionable acts under Kansas statutory law by prescribing medication without a physical exam or consultation and without explanation of the side effects. TRIAL COURT DECISION The trial court did not find the acts of Dr. Levine to be unconscionable under the Kansas law, but it did enjoin him from dispensing medication or practicing medicine in Kansas. The trial court explained its reasoning as follows: “Plaintiff contends Defendant Levine, a doctor licensed only in the State of Washington, prescribed and sold Viagra to two undercover investigators for the Kansas Attorney General: one a woman and one a 16-year-old boy, all without a physical examination or other personal contact. These transactions are claimed to have occurred over the Internet. The transactions included misrepresentations by the investigators and contained waivers whereby the investigators indicated they had read manufacturer’s information about the drug, understood its contraindications and assumed all risk of use. … [T]he Court is not satisfied these facts describe an ‘unconscionable act’ as defined by [Kansas law], the claim made by the plaintiff. First, the conduct bears no resemblance to the statutory examples of such behavior and further, there was no actual harm done to anyone. Nothing was misrepresented. All drugs furnished were authentic. The pharmacy expert testified that if the waivers in the orders signed by the investigators were true, more would have been understood by them than ‘regular’ doctors and druggists typically advise their patients or customers. This does not describe a deceptive, fraudulent or unconscionable consumer practice.” THE SUPREME COURT OF KANSAS AFFIRMS In a decision released Jan. 25, the Supreme Court of Kansas affirmed the trial court’s decision. According to the supreme court, the minor male and the adult female “at best made a bad bargain, but, lacking any indication of deceptive bargaining conduct or unequal bargaining power, the $75 charge for the consultation was not unconscionable.” The court further noted: [B]oth purchasers did not intend to use the drugs nor did they use the drugs. The lack of a physical examination posed no threat to either of them. They falsified information in order to procure the pharmaceutical. Finally, the State’s pharmacist testified that had the purchasers in fact read the manufacturer information about Viagra, they would know more information than he provides his own customers. He also admitted that the questions asked on the computerized consultation form were more in depth than those he poses to individuals who have been prescribed Viagra. The court thus concluded, that “[w]hen considering the entire transaction, the facts are insufficient to fall within the purview of” unconscionable acts under Kansas statutory law. The court found it important to note that “the minor’s parent was present and involved in every step of the transaction. The State failed to present any evidence that Dr. Levine deceived, oppressed, or misused superior bargaining power in supplying or prescribing Viagra to [the minor]. Levine’s actions did not involve advertising techniques, contract terms, debt obligation, limitation of warranties, or the type of conduct intended to be considered unconscionable under” Kansas law. Thus, the supreme court held that “the public is adequately protected by the injunction that was issued, and the trial court’s refusal to expand the scope of the [Kansas law on unconscionable conduct] under the facts of this case is affirmed.” PROCEED WITH CAUTION People doing business on the Internet must be very careful. Although, in this case, Dr. Levine’s conduct did not constitute unconscionable acts under Kansas law, people conducting business online must take into consideration federal and applicable state laws, and be ready to face increased scrutiny in light of the evolving nature of law in this area. To help maneuver through potential pitfalls, those doing business over the Internet should engage competent legal counsel to help guide such conduct. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.comand his firm’s site is Duane Morris. Mr. Sinrod may be reached by e-mail at [email protected].

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