As physician and health care provider income has decreased, we have seen increased questions regarding the sale of dietary and vitamin supplements in health care provider offices. This includes physicians such as dermatologists and plastic surgeons, chiropractors, acupuncturists, and other alternative health care practitioners.
Despite the mutual benefits for both the patient and physician, office dispensing continues to be controversial. For example, the American Medical Association is concerned that selling health-related goods in the office may compromise the patient-physician relationship.
In general, we believe that health care providers -- whether physicians or alternative health care practitioners -- should work on preserving the right to dispense dietary and vitamin supplements by conducting themselves in a highly professional and ethical manner with their patients.
As the Internet has become an increased means of doing business, there are also sales via the Internet from providers or companies that providers recommend. This can raise different issues, especially where the health care provider refers the patient to an Internet company and receives a percentage of the purchase price.
Here is one question that was posed to the California State Attorney General's Office in 2001 and helps provide a guideline on the rules.
Question: We are advised that an Internet distributor of naturopathic products proposes to enter into agreements with chiropractors in this state whereby the chiropractors would receive fees of 20 percent of the price of the products purchased by their patients from the company’s website. We are asked whether the proposed program would be prohibited under the provisions of section 650 of the Business and Professions Code.
Answer: The State Attorney General's Office issued a written opinion concluding that the program would violate the statute. Thus, this arrangement would violate the law. In our opinion, the same analysis would apply to any licensed health care provider.
For the opinion in full, see: http://ag.ca.gov/opinions/pdfs/00-1002.pdf
In analyzing whether the sale of vitamin supplements to patients would constitute unprofessional conduct or subject our clients to increased liability, we analyze the following facts among others (remembering that each case is different):
■ How does the product relate to the practitioner's specialty?
■ Does the recommended product relate to the diagnosis and/or promoting the patient's wellness?
■ What is the markup and how does it compare to a general retail outlet?
■ Does the patient understand that he or she can buy the product elsewhere?
■ Is there pressure by the staff to sell the patient these products?
■ Does the practitioner provide anything in writing to let the patient know that there is no obligation to buy the product and the quality of care will not be affected by the patient's decision to purchase or not purchase products?
Before embarking on selling vitamin and dietary supplements to patients, consider seeking experienced legal advice on how to structure the sales, how to train your staff and the information to be provided to patients.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates, Attorneys at Law, in Los Angeles, California. They focus their practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers including alternative practitioners.
