Osteopathic Medical Oncology and Hematology, P.C. - Page 16




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          drugs administered in the practice are subordinate to the                   
          provision of the medical services.                                          
               We disagree with respondent's contention that "The transfer            
          of the drugs is clearly a commercial transaction" to the extent             
          he implies a commercial transaction is the conveyance of                    
          merchandise.  Given the nature of the services petitioner                   
          provides and the substance of the service transactions, we are              
          convinced petitioner is not selling merchandise when it                     
          administers chemotherapy drugs.  The case of Abbott Labs. v.                
          Portland Retail Druggists Association, Inc., 425 U.S. 1 (1976),             
          parallels that conviction.  There, the Supreme Court decided                
          whether drugs purchased by a nonprofit hospital at prices lower             
          than those charged commercial pharmacists were exempt from the              
          antiprice discrimination provisions of the Robinson-Patman                  
          Antidiscrimination Act, ch. 592, 49 Stat. 1526 (1936), 15 U.S.C.            
          sec. 13(a) (1994).  The exemption generally applies where the               
          nonprofit institution is purchasing the drugs for its "own use"             
          as opposed to for sale to patients.  In siding with the                     
          hospital's contention that it was exempt, the Court stated:                 
               it seems to us to be very clear that a hospital's                      
               purchase of pharmaceutical products that are dispensed                 
               to and consumed by a patient on the hospital premises,                 
               whether that patient is bedded, or is seen in the                      
               emergency facility, or is only an outpatient, is a                     
               purchase of supplies for the hospital's "own use," * *                 
               *.  In our view, * * * this is so clear that it needs                  
               no further explication.  [Abbot Labs. v. Portland                      
               Retail Druggists Association, supra at 10-11; emphasis                 
               added.]                                                                




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