贿赂中国医生是贿赂FCPA下的政府官员吗？

按：这是美国《反海外腐败法》下的一个经典问题。陈立彤律师之所以重拾此话题，原因有两个：第一，中国国有医院的医生在中国法下不是政府官员或者说不是国家工作人员。既然中国法下不把医生当作国家工作人员，那么FCPA把中国国有医院的医生当成政府官员还有意义吗？第二，魏则西事件发生之后，有人认为国有医院的医生，特别是那些莆田系的医生不应当被当作FCPA下面的政府工作人员看待。那我们看看陈立彤律师是怎么分析和结论的。

Doctors filmed in taking kickbacks in clinic rooms

In the eve of Christmas of 2016, the China Central Television Station (“CCTV”) broadcasted a report showing that doctorsin six hospitals in Shanghai and Hunan Province took bribes from medicine sales representatives.  According to CCTV, the kickback amounts to about 30 to 45 percent of the medicines’ price. 

CCTV footage showed a doctor in Shanghai receiving a 1,800 yuan (US$260) bribe from a drug sales agent for prescribing150 boxes of a medicine in a month.  In another case, a drug representative gave envelopes to three doctors at a hospital within an hour.

https://v.qq.com/txp/iframe/player.html?vid=w1312fjz3at&width=500&height=375&auto=0

A drug agent can get a bonus of around 10 percent from the medicine prescribed, the report said.  The undercover investigation followed nearly 100 medicine representatives at four hospitals in Shanghai over eight months.

The report started with a group of mysterious “special patients” at a Shanghai hospital that has more than 4 million outpatients a year.  It said these “patients” had no medical records but showed up at similar times everyday.

They only walked into consulting rooms when there were no actual patients inside.  The bogus patients — the drug representatives — were seen checking doctors’ prescription tallies on their computers, CCTV footage showed.

A drug agent, who said he had lost his smartphone, was told by a doctor he would soon be able to buy an iPhone 6 fromhis illicit gains.

The drug representatives visited the hospitals on a daily basis in the hope that doctors would prescribe more of their products, the report said.  It showed they gave “envelopes” to doctors after entering consulting rooms.  One doctor received envelopes from four representatives within three minutes, the footage revealed.

Insiders said the higher the price of the drug, the bigger room there is for a kickback, which encouraged some doctors to prescribe expensive drugs.

The footage showed a doctor in a hospital in Changsha, capital city of Hunan, showing displeasure that his kickback was not sufficient — the going rate is a minimum 20 percent of the drug’s cost.

“It should be at least 20 percent higher,” the doctor was filmed as saying. “Others offer more than 30 percent, and how could you compete with them? The price of the drug is so high, and you are sucha big company, which is hard to understand,” he complained.

The report also compared the prices withthe market rate of five drugs, with the biggest gap shown as being over 10times.

Multinational companies punished under the FCPA forbribing Chinese doctors of state-owned hospitals

Many pharmaceutical companies and medical device companies were found in and punished for violation of Foreign Corrupt Practices Act (“FCPA”) by giving kickbacks to Chinese doctors.  Untruthful booking of bribing expenses as normal business expenditures is one of the reasons.  Another important reason is that the Chinese doctors are regarded as governmental officials under the FCPA.  Thus, bribing the doctors is bribing governmental officials......

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