Laboratories and other healthcare industry companies granting payments and benefits to physicians may face different liabilities under Argentine Law, calling for a cautious and thorough analysis before any marketing action based upon those gratuities is launched.
In Argentina, the practice of medicine, dentistry and their collaboration activities are governed by the National Medical Practice Law No. 17.132 (hereinafter the Medical Practice Law). According to the Article Number 20 of the Medical Practice Law, it is prohibited for those professionals practicing medicine:
- To induce patients to be supplied in certain pharmacies or optical or orthopedic establishments (section 19); and
- To obtain benefits from clinical analysis laboratories, companies manufacturing, distributing, selling or delivering medicines, cosmetics, dietetic products, prostheses or any element used in the diagnosis, treatment or prevention of diseases (section 21) 1.
Medical professionals violating the prohibitions may be sanctioned with a warning, fines, license suspension and/or surgery´s closing (Article 126).
In line with the above, the National Law No. 25.649 on the promotion of the use of medicines by its generic name, mandates that any prescription or medical prescription must be mandatorily made by expressing the generic name of the drug or its common international denomination, followed by the pharmaceutical form and dose/unit, with detail of the degree of concentration. The recipe may also indicate the generic name or trademark, but in such case, the pharmacist, at the request of the consumer, will be obliged to replace it with a medication of a lower price that contains the same active ingredients, concentration, pharmaceutical form and a similar number of units (Article Number 2),
Therefore, it is fair to analyze what would happen if, as a consequence of the induction triggered by the benefits received, a healthcare professional only prescribed medicines and products of a particular brand and caused damages to a certain patient because they are therapeutically inadequate for the patient´s condition. Based on the general civil liability regime legislated in the Civil and Commercial Code of the Nation, the physician and the healthcare company may be held liable and condemned to compensate the damages.
Further to the civil liabilities, if the health professional involved were at the same time a public official, the benefits granted by laboratories and healthcare companies might also be judged as criminal offenses, and the physician and the executives of the company that awarded the benefits subject to potential indictments. Under article 256 of the Criminal Code of the Nation, it is a criminal offense the conduct of a public servant, who personally or through an intermediary, receives money or any other gift, or accepts a direct or indirect promise, to do, delay or stop doing something related to his/her duties. Accordingly, Article 258 of the Criminal Code of the Nation also criminalizes the conduct of those who directly or indirectly offer or grant such gifts2.
1. A not yet implemented law within the jurisdiction of the Autonomous City of Buenos Aires has established a reporting obligation falling on the manufacturers, importers and distributors of medical, biological and pharmaceutical products that grant and/or deliver goods, services, benefits or rewards of monetary value to physicians (Law No. 5709). A similar draft bill is currently under evaluation of the Federal Congress.
2. In a recent judicial precedent where a federal judge prosecuted physicians who worked for the public health system for retirees, and directors of a laboratory for making payments to the medical doctors who, in turn, only prescribed to their patients medications of a specific trademark.
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