Topeka Howard Levine formed a company to sell prescriptions over the Internet, including the impotence drug Viagra. In 1999, a 16-year-old Kansas boy was a customer.
The boy was the son of a Kansas Bureau of Investigation agent, and Levine, a Seattle doctor, found himself caught in a sting. The attorney general's office filed a consumer protection lawsuit against him and his now-defunct company, Confimed.com.
Though a district judge ordered Levine to stop Web drug sales, that same judge dismissed the consumer protection lawsuit, concluding that Levine hadn't committed fraud.
The Attorney General's Office appealed to the Kansas Supreme Court, hoping to get the lawsuit reinstated.
Levine's attorney said Thursday that the state shouldn't be allowed to use its consumer protection laws to crack down on doctors like Levine.
"The consumer sought something out; the consumer got what he sought out," said the attorney, James Jarrow, of Overland Park. "There were absolutely no misrepresentations made."
The state argues that prescribing medicine without a physical examination is an unconscionable act for a doctor. Kansas consumer protection laws prohibit unconscionable acts in commerce.
"Consumer fraud was never the issue," Assistant Atty. Gen. David Harder said. "We believe the doctor's conduct in this case shows he had a complete disregard for the welfare of his patients."
The justices could rule in Levine's case as early as Jan. 25.
The lawsuit was part of an effort by Atty. Gen. Carla Stovall to attack Internet drug sales.
Other legal problems
Levine had other, unrelated legal problems. Washington state disciplined him in 1999 about allegations of substandard care in performing abortions. Last year, Levine was sentenced to federal prison about allegations that he tried to extort money from the company that operates Jack-In-The-Box restaurants.
In 1999, Stovall's office filed eight lawsuits against doctors and companies selling Viagra over the Internet. Levine was the only case that went to trial.
During the trial, Shawnee County District Judge Terry Bullock said he could see how a doctor who sold Viagra over the Internet should "be strung up by the neck" but didn't see how Levine or Confimed.com committed fraud.
Harder said laws that regulate doctors and pharmacists aren't adequate. Levine couldn't be disciplined in Kansas because he didn't have a Kansas license.
But the justices questioned Harder about how broadly consumer protection laws could be interpreted if they ruled in the state's favor.
Justice Fred Six asked whether the state would be able to file a consumer protection lawsuit any time a minor used the Internet to obtain a product he shouldn't.
Harder answered: "We believe this was very dangerous conduct."
The 16-year-old who purchased Viagra didn't lie about his age, but Justice Donald Allegrucci noted the boy was directed to make the purchase as part of a sting.