Healthcare in Argentina: payments and benefits to physicians. Liabilities of laboratories and other healthcare companies
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)..
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 causeddamages 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 gifts.
Guillermo H. Pierini Mario E. Castro Sammartino
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.
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.
Our publications exclusively express the author´s opinion and do not purport to be legal counsel on any case. Should you need it, you must consult with your trusted lawyer or may contact us at your convenience. If you liked the article, please, share it.
Recent articles in our Legal Blog
The Argentine Executive Power, by means of the Urgency and Necessity Decree No. 609/2009, established new foreign exchange regulations in Argentina controlling certain aspects of the inflows, outflows, purchase of foreign currency and other transactions as of 1 September 2019. These regulations have been complemented and extended by additional regulations issued by the Central Bank of the Argentine Republic (Banco Central de la República Argentina, or BCRA after its Spanish acronym).
In this third part of the series of articles that we will publish on the subject of the promotion of the knowledge economy carried out by the new Law No. 27.506, we will deal with the significant tax benefits of the knowledge economy in Argentina.
In this second installment of the series of articles that we will publish on the subject of the promotion of the knowledge economy carried out by the new Law No. 27.506, we will focus on the beneficiaries of the promotion of the knowledge economy.
Promotion of the Knowledge-Based economy in Argentina: a new regime and incentives for this thriving field of the industry. Part one
By Law No. 27,506, published in the Official Gazette on June 10, 2019, the national government established the Promotion of the Knowledge-Based Economy Regime with the goal of promoting economic activities that apply the use of knowledge and the digitalization of information, supported by breakthroughs in science and technology, to obtaining goods, providing services and/or improving processes
To incorporate a brand new subsidiary in Argentina or take interest in an already existing company, foreign companies must first register themselves with the Public Registry, filing certain documents