by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the March 2001 issue of the Journal
Question: Can the Michigan Board of Dentistry regulate out-of-state dentists who prescribe over the Internet to Michigan citizens? Would the law be the same if Michigan dentists prescribed over the Internet to out-of-state citizens?
Answer: The question of jurisdiction over out-of-state individuals based upon the Internet is in its developing state. Although there is no definitive law in Michigan, the Oklahoma Attorney General recently decided that the Oklahoma Board of Dentistry can assert the right to regulate out-of-state individuals who practice dentistry in Oklahoma over the Internet. An Oklahoma resident filed a complaint with the Oklahoma State Dentistry Board alleging that she had an allergic reaction to a prescription antibiotic she received after describing her dental problems over a World Wide Web site hosted by an out-of-state dentist.
The State Attorney General concluded that the Oklahoma Dentistry Board could assert jurisdiction over out-of-state parties that affect Oklahoma residents through the Internet to the same extent that the Oklahoma Dental Act and the dentistry board’s rules are applied to in-state parties. Whether jurisdiction exists is fact-dependent. The Attorney General stated “the test is whether the actor purposely directed his or her activity in a substantial way toward Oklahoma residents, and whether the actor knew or should have known that the resulting harm was likely to be suffered in Oklahoma by his or her actions.”
Out-of-state parties can post Web sites and identify themselves as dentists in their jurisdictions, according to the Oklahoma Attorney General. However, the Attorney General opined that if the out-of-state party solicits or engages in Internet correspondence with an Oklahoma resident, and dispenses drugs or sells dentures as a result of that correspondence, the line has been crossed. The regulation of professions exists to protect the people of Oklahoma, according to the Attorney General, and cannot be avoided simply by reaching from across the state’s geographic boarder to practice dentistry in Oklahoma.
A number of courts have analyzed when Internet contacts are sufficient to establish jurisdiction. The U.S. Court of Appeals for the Ninth Circuit held that personal jurisdiction in Internet-related cases must involve something more than an Internet advertisement alone to show that a defendant purposefully directed activities toward a forum state. A federal court in Missouri ruled that a California-based operator of an Internet Web site was subject to the jurisdiction of Missouri’s courts because the defendant allegedly caused economic injury to a Missouri corporation. In developing the law on Internet jurisdiction, it can be expected that courts will apply the same or similar reasoning that has been applied to jurisdiction over publications involving libel law claims. For example, the U.S. Supreme Court held that California’s courts had jurisdiction in a case where a Florida corporation’s newspaper published a derogatory article about a California-based actress.
Although no definitive conclusions can be made with respect to Michigan law, it is likely that Michigan would adopt a similar rule. Jurisdiction may be established if a dentist’s contacts were purposely directly toward, or have an effect in, the state of Michigan, such as would be the case if drugs were dispensed through the Internet. It is likely that the corollary would also be true with respect to activities by Michigan dentists relative to citizens of other states.