Late last fall, Dr Daniel Poulin sued Jean Coutu Pharmacy
and the Quebec College of Physicians over what he alleges
was a $500,000 bribe offered to him by the drugstore chain
to relocate his clinic over a new store they were planning
in Saint Constant, Quebec. He charged Jean Coutu of fostering
unfair competition. Dr Poulin told the CMAJ that
the reason the College was included in the suit was that,
"when the College says discounted rent isn't a conflict
of interest, it's false."
The case focuses attention on a
subject that gets scant coverage: doctors and kickbacks.
The question isn't whether they happen. They do. Have
you ever taken a present from a patient knowing
in the back of both your minds that for some,
preferential treatment was expected? Hummm. The question
becomes what's ethical and, farther along the curve,
is it legal? Unlike Dr Poulin, few physicians ever want
to go to court to find out.
Not that going to court in Canada
with a case related to kickbacks is all that easy. The
regulations vary considerably province to province.
Still, there is sufficient consensus that a list of
no-nos that errs on the conservative side is possible.
Better safe than sorry isn't a bad policy when it comes
to bribes, kickbacks and out-and-out fraud.
DON'T
CHEAT THE PROVINCE
What you don't want to do is fiddle with your provincial
billing. Making claims for procedures you didn't do
or for patients you never saw will put you on the wrong
side of the law in whatever province. Insurance companies
take an equally dim view of this sort of thing and are
a highly suspicious group. They especially don't like
claims from physicians for services they didn't perform.
To read some purple prose on the subject, type "doctor+insurance+fraud"
in your nearest search engine. When it comes to other
sorts of payoffs, only Nova Scotia and PEI have no regulations
whatsoever. As for the rest, it depends on the nature
of the kickback.
REFERrALS
WITH BENEFITS
Independent Health Facilities are the current kickback
of choice. In a nutshell, you refer patients to a lab
for tests, to physio, for massage, acupuncture, or any
other procedure and you receive a 'fee' from the provider
of the service. The regulations also apply to self-owned
facilities. What the regulators look for, in these cases,
is extra use of a self-owned facility. If your peers
generally refer 4.4 patients a week for x-rays and you
send seven a day to the lab you own down the street,
you could be in trouble. Only BC and naturally
Nova Scotia and PEI have no regulations forbidding
such practices.
DOCTORS
AND OTHERS
Again, all provinces except BC, NS and PEI have specific
regulations against it. On a slightly brighter note,
Manitoba and Newfoundland don't actually have statutes
on the books against physicians who pay kickbacks. Though
those who accept them are subject to prosecution, again,
depending on where you live and what you did.
Take a kickback from a pharmaceutical
and medical device supplier and you "go directly to
jail and do not collect $200."
OFFICE/CLINIC
RENTALS
This is the one Dr Poulin has a problem with. The idea
is that if you rent a facility from someone you're doing
business with, you have to pay the fair market value
in rent. Only Saskatchewan, Manitoba, Ontario and Newfoundland
have specific regulations forbidding such activity.
Quebec prohibits it if the kickback, "would jeopardize...the
professional independence" of the physician. So it's
not entirely clear how the court may rule in the Poulin
case.
AVOID
THE SCAM
When all is said and done, provincial regulations, on
the surface, appear to give the would-be kickbacker
or kickbackee some wiggle room given where you practice.
Rule of thumb: if it feels like a scam, it is a scam
and you risk finding yourself in court even if it is
only the court of good conscience.
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