Subpoena Knows No Borders
By Dale J. Atkinson, JD
Advancements in technology increase
the likelihood of licensees practicing
across state and international lines.
As has been emphasized in previous
Newsletter articles, and in a feature
article in this issue, physical presence
is not necessarily a prerequisite to
practice. That is, practitioners can use
technology to render services within
the scope of practice as defined without
stepping foot within the jurisdiction
where the patient is located. Practice
without physical presence creates
difficult legal and practical challenges
for boards of pharmacy. The courts are
currently, and will continue to grapple
with jurisdictional issues involving what
board and/or court has the authority
to adjudicate administrative disputes.
Further, the investigative processes will
also be challenged regarding the gathering
of relevant information to pursue
administrative prosecution. Consider the
following.
A physician (Licensee)
is licensed in both Kansas
and Missouri. In 2009, the
Kansas State Board of Healing
Arts (Board) opened an
investigation of the Licensee
based upon information
that a patient filed a lawsuit
alleging medical negligence,
fraud, and misrepresentation.
The lawsuit was filed
in Missouri based upon the
fact that the medical services
were rendered in Missouri.
The Board issued a subpoena
to the Licensee requesting
documents related to the
medical treatment of the
patient. The Board took
the position that it had the
authority to investigate the
Licensee’s practice and issue
the subpoena because the Licensee
holds a Kansas license
and the allegations in the
Missouri lawsuit constituted
grounds for discipline under
the Kansas Healing Arts Act.
The Licensee filed a petition
in district court seeking
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NOTE: That each states law is different as to these types of issues and that one state's law is not binding on another state, but is merely persuasive authority.