CAMLAW: Complementary and Alternative Medicine Law Blog

In-office physician sale of dietary supplements: conflict of interest

Can MDs or DOs sell patients dietary supplements from the office?

Can they, alternatively, direct patients to an online site from which they collect a check based on patient revenues?

Both of these can vary according to individual state laws, but the latter especially raises concerns about a potential "kickback" from the supplement company to the physician.

These situations have to be handled carefully.

As an example, consider this regulation:

COMMONWEALTH OF MASSACHUSETTS BOARD OF REGISTRATION IN MEDICINE POLICY 05-01 (Adopted July 20, 2005) SALE OF GOODS FROM PHYSICIANS' OFFICES

"In [their] fiduciary capacity, physicians have a duty to serve the interests of patients above their own financial or other interests."
Federation of State Medical Boards, House of Delegates, April 2000

"In-office sale of health-related products by physicians presents a financial conflict of interest, risks placing undue pressure on the patient, and threatens to erode patient trust and undermine the primary obligation of physicians to serve the interests of the patient before their own." American Medical Association Code of Ethics

Section 8.063 "Sale of Health-Related Products from Physicians' Offices", Adopted June 1999. Physicians should not sell, lease or rent any product in a manner that has the potential to exploit patients, including but not limited to exclusive distributorships or personal branding. Physicians should not use their office or their professional relationship with patients to promote any business venture or solicit investors. In limited circumstances, when it is beneficial to the patient, it may be appropriate for physicians to sell durable medical goods essential to the patient's care. Prior to any such sale physicians should disclose to patients any financial interest they may have in the transaction. Patients should be informed that they are under no obligation to purchase durable medical goods from the physician and should be informed of the availability of the product or other equivalent product elsewhere. This information shall be conveyed via an easily understood notice prominently posted in the office. Physicians are encouraged to provide products to patients at cost or free of charge, particularly when it allows treatment to be accessed and initiated more quickly.
Examples of when the sale of durable medical goods is appropriate include:

• Providing a patient with crutches from the physician's office rather than forcing the patient to travel to a medical equipment distributor.

• Providing a patient with impaired vision with corrective lenses when their vision would otherwise impair their ability to travel to another location.

Some physicians offer supplements to patients as a convenience, and place a limited markup on inventory sufficient to cover stocking and administrative costs. In some case, our law office can draft language alerting patients that physicians have a financial interest in supplements and that patients can obtain the same goods elsewhere; further, that patients' quality of care will not affected by whether they obtain supplements from the physician or elsewhere.

However, the language of the above regulation is fairly strict and makes clear that the Board disfavors physician profit from health-related products except: "In limited circumstances, when it is beneficial to the patient, it may be appropriate for physicians to sell durable medical goods essential to the patient's care." Notice the words, "limited," "beneficial," and "essential." The Board adds: "particularly when it allows treatment to be accessed and initiated more quickly."

Notice the required conditions: "Prior to any such sale physicians should disclose to patients any financial interest they may have in the transaction. Patients should be informed that they are under no obligation to purchase durable medical goods from the physician and should be informed of the availability of the product or other equivalent product elsewhere. This information shall be conveyed via an easily understood notice prominently posted in the office."

Sometimes the language can also be included on the invoice attached to the product.

Physicians need to understand the laws, regulations and Board practices adopted in their own state.

Trackbacks (0) Links to blogs that reference this article Trackback URL
http://www.camlawblog.com/admin/trackback/158659
Comments (0) Read through and enter the discussion with the form at the end
COMPLEMENTARY & ALTERNATIVE MEDICINE LAW BLOG

Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173