Your dermatology practice may supply cosmetics to patients. While this is legal, best legal practices exist for ensuring patients do not confuse the product “pushed” as constituting a medical treatment. It is advised to make certain advance written disclosures prior to sale. This simple, non-costly risk hedge will enable the practitioner to avoid improper harassing allegations of “professional misconduct” being made to a licensing agency relating to: (1) advertising and promotion that is false, fraudulent, deceptive or misleading, and (2) exercising undue influence on the patient, including the promotion of the sale of goods in such manner as to exploit the patient for the financial gain of the practitioner or of a third party doing business with the practice. Essentially, these patient protections built into misconduct laws assume that a patient will interpret a suggestion to use a physician-dispensed product as a prescription or medical order, or, much worse, as a viable substitute for treatment and medication which may have health consequences. The physician-patient relationship, after all, is one of unique trust.
However, valid claims for such unprofessional conduct rise well beyond the level of mere suggestion, discussion, promotion, display or sale of the product by the physician. Rather, valid allegations typically involve active inappropriate inducement and trickery. Nevertheless, a physician should insulate himself or herself from such groundless potential claims when all that is involved is factual discussion, promotion, display and sale, by providing clear disclosure of the following to the patient in writing:
- The physician or medical practice receives a financial benefit from the sale of the product, indicating whether by virtue of ownership in the selling entity or product itself or of a share of sales that are made by a third party;
- The product is not FDA-approved prescription medication.
- The product is not being prescribed by a physician as medically necessary and does not serve as a substitute for medical consultation and treatment;
- The product is not paid for or otherwise reimbursed by health insurance, whether in or out-of-network; and
- Equivalent products are available from other sources.
The practice should also provide understandable literature that relies on scientific standards in addressing the benefits, risks and limits of knowledge regarding the health-related product.
Such disclosure notice should be signed by the patient, possibly as part of the patient intake package or at the time the sale is made. A practice might also consider posting signage in a prominent location, such as near the product display.
