Argentina: Payments And Benefits Granted To Healthcare Professionals In The City Of Buenos Aires

Last Updated: 10 July 2017
Article by Laura N. Lavia Haidempergher and Mercedes de Artaza

Through the enactment of Law No. 57091, the City of Buenos Aires has taken a step forward regarding patient protection and possible conflicts of interest that might affect therapeutic decisions taken by healthcare professionals.

An information and advertising regime for payments and benefits received by physicians in the City of Buenos Aires has been set up in order to provide clarity on a controversial issue regarding the impact that these benefits have on the prescribing of treatments and medications.

Within the framework of this regime, the Law sets out that manufacturers, importers and distributors of medical, biological and pharmaceutical products that provide and/or deliver to healthcare professionals goods, services, benefits or inducements with an economic value must inform the Department of Health of the City of Buenos Aires –the enforcement authority of the aforementioned law- on said issues in order for them to be properly publicized. The information to be submitted must include, at least, the identification of the contributing company; the personal information of the physician that is to receive the benefit plus his/her medical specialty; and the date, characteristics and amount of the granted payment or benefit. This information must be published by the Department of Health of the City of Buenos Aires in order to allow for public inspection.

In order to avoid doubts on its scope, the Law identifies 'goods with an economic value' as: cash payments, professional fees, amounts destined to finance professional training activities, as well as the delivery of goods, travel tickets, gifts, accommodation, representation allowances, meals or any other goods that could be deemed to have an economic value.

The system established is closely linked to the ethical guidelines stemming from section 366 of the Ethics Code for Health Professionals of the Argentine Medical Association (AMA in its Spanish acronym).2 This code deems gross ethical misconduct for any health professional to receive any benefits or rewards from companies or laboratories of medical products in exchange for prescribing certain medications or medical products. In accordance with this view, the Ethics Code of the Industrial Chamber of Argentine Pharmaceutical Laboratories (CILFA in its Spanish acronym)3 contains general rules that set forth the obligation for its members to promote and commercialize their products according to the provisions of the regulations in force and the good practices of the sector.

More specifically, the Code of Good Practices for the Promotion of Medicinal Specialties and Interrelationship with Healthcare Professionals of the Argentine Chamber of Medicinal Specialties (CAEME in its Spanish acronym)4 sets forth the prohibition for its members on delivering or offering money or any other kind of inducements (including sponsorships, scholarships, subsidies, consultation or training agreements, or agreements related to the professional exercise) to a healthcare professional in exchange for prescribing, recommending, acquiring, dispensing or administering certain products, or for committing themselves to continue doing so.

In all cases, failure to comply with these ethical duties will only result in warnings, suspension of membership rights, or immediate expulsion from the respective entity.

The reverse side of the coin

Both at a national and local level there are regulations forbidding physicians from receiving inducements or benefits from laboratories and companies involved in healthcare, or discouraging any possible benefit derived from noncompliance with these obligations.

At a national level, section 20, subsections 19) and 21) of Law No. 17,1325 governing medical practice in its different specialties -including not only physicians but also dentists and those professionals engaged in activities related to medicine or dentistry- prohibits, inducing patients to buy in specific pharmacies or optical or orthopedics outlets and/or to obtain benefits from analysis laboratories, establishments that manufacture, distribute, commercialize or sell medicines, cosmetic products, dietary products, prosthetics or any other element used in the diagnosis, treatment or prevention of diseases. In this sense, this regulation provides that infringement of these prohibitions may result in penalties consisting of warnings, fines, suspension of professional registration and/or closure of the professional's offices.

In accordance with the statements above, section 366 of the AMA's Ethic Code6 provides that healthcare professionals must refrain from receiving privileges or benefits of any kind, for the prescription or advice on the use of medical products.

Law No. 25,6497 for the promotion of the prescription of medicines by their generic name, states in section 2 -among other statements- that all medical prescriptions must be made by stating the generic name of the drug or its commonly given international name, followed by its pharmaceutical form and dose/unit, detailing the concentration degree. Likewise, said law also provides that should the prescription indicate the brand or both the commercial and generic name, the pharmacist will be obliged, if requested by the consumer, to substitute it for a cheaper product containing the same active ingredients, concentration, pharmaceutical form and a similar amount of units.

That is to say that although this rule was created for purposes other than those discussed herein and, therefore, it is not based on the ethical nature of the incentives influencing a prescription, it happens to be an effective tool to discourage any possible benefit derived from the non-fulfillment of the medical professional. Of course, to the extent that the gift or benefit is related to the actual purchase of the drug and not just to its prescription, as it is well known that this information is recorded in pharmacies´ databases and could then be used to reward / encourage professionals.

As in the previous case, the failure to comply with these ethical duties is sanctioned exclusively by warnings, suspension of membership rights or expulsion from the respective entities8.

The future of the system

The Law has not been regulated, so up till now there are still more doubts than certainties, especially in relation to its practical purpose. It is enough to mention that the Law does not establish the consequences of non-compliance with its provisions, as well as of its effective fulfillment. This becomes more relevant considering that, as stated: there is no explicit rule criminalizing such conduct per se by medical professionals or manufacturers, importers and distributors of medical, biological and pharmaceutical products in the private sector.

On the other hand, it would be advisable to explicitly extend the scope of the rule to all health professionals who, by virtue of their functions, are liable to be subject to practices which the law seeks to prohibit. Given that while section 1 states that the rule is applicable to health professionals, the following articles - for which the reporting obligation is established - refer exclusively to physicians.

It is true that the reporting of these operations establishes a limit to laboratories and health companies at the time of justifying the granting of those benefits, fundamentally in terms of economic relevance, linkage with medical practice, frequency and objective criteria of adjudication.

However, it is also true that the Law only establishes an informative regime of operations of very limited scope, not only from the geographical perspective, but also as to its effectiveness and the obligatory observance thereof.

Although the Law establishes its goal of granting patients means aimed at providing as much information as possible as regards potential conflicts of interest that could affect therapeutic decisions adopted by health professionals, the truth is that simply knowing that a benefit was granted to an attending physician does not allow the patient to assess whether or not such benefit had an impact on the prescription.

It is therefore expected that through the regulation of the Act or in the framework of future rules of national scope, progress will be made in creating a reasonable and effective control regime aimed at discouraging and penalizing the granting of undue benefits and all kinds of practices that have the purpose or effect of influencing medical decisions to the detriment of patients, the principal victims of these practices.

Footnotes

1. Law No. 5709 in force from January 13, 2017.

2. Second Edition of the Ethics Code for Health Professionals with the contribution of the Argentine Ethics Association in Commemoration of the 120th anniversary of the foundation of the Argentine Medical Association (1891-2011), Revised and Expanded Edition (2001), available (in Spanish) available at https://www.ama-med.org.ar/page/Codigo_de_Etica-2da_Edicion .

3. Available at
http://www.google.com.ar/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwix4bLV74jTAhXEipAKHfFwCWcQFgggMAE&url=http%3A%2F%2Fcilfa.org.ar%2Findex.php%3Fmodulo%3Darchivos%26accion%3Dsitio_descargas%26idarticulos%3D1117%26idarchivos%3D146053&usg=AFQjCNGCz9WrKFogrV053dikjB77pyy-yA

4. Available at
http://www.caeme.org.ar/images/caeme-codigo-de-etica-vigencia-15-de-diciembre-2016.pdf

5. Law 17,132. The Art of Healing: Rules for the Exercise of Medicine, Dentistry and Related Activities in force from January 31, 1967.

6. Idem 2.

7. It is important to point out that there are substantive rules with national scope that might be applicable to this issue when the healthcare professionals were public officers. Thus, for instance, section 256 of the National Criminal Code provides that any public officer that directly or through a third person accepts money or any other benefit or a direct or indirect promise to make, delay or cease to perform something in relation to his/her duties will be punished with imprisonment and special permanent disqualification. Likewise, section 258 of said code foresees similar sanctions for officers that directly or indirectly offer or give said benefits. Similar prohibitions derive, among others, from Law 15,164, Decrees No. 41/99 and 1023/2001 with a national scope, and Law 2095 applicable in the City of Buenos Aires. Nevertheless, these regulations do not apply to private relationships.

8. Only in case of injury or death caused by this type of conduct, could the punishments provided for in Chapters I and II of the Second Book, TITLE I of the National Criminal Code, be applied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions