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...