June 2, 2015

Hi Jennifer

Always enjoy reading your pieces. I share your emails with my friends regularly.
One friend has begun to send me large numbers of very good referrals. I would like to show my gratitude to this gentleman in addition to my assuming the care of these patients which he is happy with.
What are the ethics of giving say, a gift certificate, an article of clothing, a gym membership etc to this developing new referral source?
Look forward to hearing your opinion

Dr. G


I understand where you're coming from and showing appreciation to a colleague being so thoughtful and preferential creates gratitude.  There are no carve outs applicable here to get you away from exposure for "kickbacks".  Kickbacks are offering anything of value in exchange for a referral.  Wouldn’t want to see anything coming from the practice to another practice that happens to refer, unless there is a legitimate fair market value reason for the exchange. 

I asked Jessica Chung of our office to approach this question from the AMA ethics opinions and here is what she compiled - 

While the AMA Code of Ethics does not specifically address physician-physician gifts, it does address gifting to physicians from and companies in the medical industry. Under Opinion 8.061(c) (AMA 8.061), physicians may accept gifts from industry only if they will directly benefit patients or are of minimal value, in order to prevent reciprocity obligation and bias. Similarly, 6.03 (AMA 6.03) states that health care facilities may not compensate a physician (although in the form of fee splitting) for referrals. NYSED, however, does speak on this situation, stating that “directly…offering, giving…any fee or other consideration to or from a third party for the referral of a patient or in connection with the performance of professional services” constitutes professional misconduct for physicians (NYSED 131-A, Section 6530, 18). 

The general rule appears to be that gifts to physicians are only acceptable if given by the patient, who is the principal beneficiary of all of the services, under the blanket policy of protecting patients’ interests. It can be inferred that gifting between referring physicians would not fall under the exception given by 8.061(AMA 8.061), since a gift—even one genuinely motivated by appreciation—could eventually result in referral preference. Although Opinion 10.017 (AMA 10.017) addresses gifting to physicians from patients, which is permissible, one criterion that a physician is recommended to consider in accepting a gift is whether the physician would be comfortable if acceptance of the gift were known to colleagues or the public. In the case of referring patients, a gift to the referring physician, if known by colleagues or the public, could likely be viewed as a bribe or an under-the-table deal, and appreciation should be shown in some other way.

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