Medical law in recent years has been characterised by the constant juridification of the health care system through numerous reforms and an increasing degree of regulations. The addition of steady medical progress and the dynamic of case law have repeatedly posed new challenges for all those involved. It is our goal to provide for our clients the basis of factually correct decisions and to point out options for action. We ensure interdisciplinary advice and representation, in particular in the fields of labour, corporate and tax law.
The main areas of our activities are:
Labour law for medical professions / Chief physician law
We are happy to assist you with issues relating to employment and service contracts in hospitals as well as with the drafting of employment contracts for medical and non-medical personnel in the private practice sector. In this context, we provide advice with regard to the specifics of professional and contractual physician law. If, for example, a doctor is employed in a medical practice for regular work, prior approval from the admissions committee must be obtained. In this context, it should also be taken into account that the professional code of conduct does not contain any numerical limitation of the number of employed physicians, but the owner still has to personally exercise and manage the medical practice (§ 19 Paragraph 1 S. 1 MBO). Personal practice requires more than simply assuming responsibility for the treatments provided. Depending on the specialist area, criteria for personal practice and performance must therefore be developed, taking into account that relevant court rulings have not yet been issued. In this context, remuneration regulations which must be compatible with the fundamental idea of the service contract and thus with Section 307 (2) No. 1 of the German Civil Code (BGB) are also of major importance. Furthermore, we provide support in matters of post-contractual competition or – as an alternative – the agreement of a patient transfer clause.
We also provide support in the event of termination or change of service or employment relationships. We represent both employers and always try to reach an amicable solution. Of course, we also support our clients in court if a labour dispute cannot be avoided.
Medical malpractice law
One of our main fields of activity concerns medical liability, i.e., the review and negotiation of claims for compensation for suffering and claims for damages (medical treatment costs, loss of earnings, financial management damage and additional care requirements) in the event of suspected errors in information, treatment and organisation. The term “treatment error” primarily questions whether the physician has made justifiable decisions about diagnostic and therapeutic measures in the specific case using the medical knowledge and experience required of him/her and has carefully implemented these measures. By its very nature, this field of law is emotionally charged due to the personal involvement of the patient and has far-reaching consequences for all parties involved. We therefore guarantee competent, trustworthy and personal care for our clients both in the assertion (patient) and defence (practitioner) of possible claims. We support our clients in the interdisciplinary processing of complex facts with the integration of medical expertise and represent them in extrajudicial proceedings, safeguarding their interests in arbitration boards and expert commissions and in long-term court proceedings.
In order to limit liability risks, we advise physicians, professional associations as well as hospitals on the legal framework of due diligence, information and documentation obligations and support them in developing a practicable risk management system.
Professional law of the healing professions
In addition, our activities include advice and representation in the field of professional law. It is divided into healing professions that are allowed to treat physical or mental ailments on their own responsibility (doctors, dentists, psychotherapists, alternative practitioners) and medical assisting professions or healthcare professions which are authorised to treat patients exclusively on the basis of medical prescription.
The exercise of the medical profession must comply with the provisions of the medical professional law, which are essentially determined by legally binding statutes of the medical associations of the federal states. In the meantime, legal requirements for the treatment contract can also be found in §§ 630a et seq. of the German Civil Code (BGB), which hierarchically precede the professional regulations. Essential in this context are in particular duties to inform and duty of documentation, as well as the doctor’s obligation to secrecy. Both when entering into professional cooperations as well as in the external presentation and advertising and in the distribution of goods by doctors, civil law regulations must also be observed in addition to professional law regulations. Violations may therefore not only entail consequences under professional law in the form of a warning up to the loss of the license to practise medicine, but may also be actionable as violations under civil and possibly criminal law.
Furthermore, we support hospitals, clinic directors, chief physicians and subordinate physicians in all aspects of hospital operations. In addition to panel doctor and labour law provisions, this field increasingly includes issues relating to competition law or public procurement law as well as tax law, in particular, with regard to the specifics resulting from the non-profit status of many hospital providers. If a legal dispute cannot be avoided, we represent our clients in administrative, social, labour and civil courts.
Among others, our activities include issues relating to the remuneration of hospital services. We are available to enforce claims against payors and patients in the event of refusal or reduction of services. In addition, we advise and represent hospitals competently and purposefully in matters of medical professional law, individual and collective hospital labour law, in legal issues relating to the collective and non-tariff remuneration of physicians, including the drafting of chief physician contracts, corporate law, in particular the cooperation between hospitals and registered doctors, as well as liability law.
Medical criminal law
Investigation and criminal proceedings against doctors, dentists, pharmacists and other persons in this professional field often have an existence-threatening effect by the possible imposition of professional sanctions and the rules of professional conduct. On the one hand, this could involve proceedings before a court for health professions as well as administrative procedures aimed at the revocation of the license to practise medicine. The investigation or criminal proceedings conducted against a physician can also have serious consequences in terms of the Association of Statutory Health Insurance (disciplinary proceedings, withdrawal of approval proceedings or proceedings to reclaim fees), in particular in the case of allegations of fraudulent billing of fees. Allegations of physical injury (resulting from negligence) or killing, failure to provide assistance, falsification of medical records, issuing incorrect health certificates or violations of the Medicines Act as well as the latest regulations on corruption also confront physicians with complex criminal law issues.
We support our clients in their defence with the primary aim of avoiding a public hearing and the associated damage to reputation as well as professional sanctions and by the rules of professional conduct. If a trial cannot be avoided, we also cooperate with specialist lawyers for criminal law if necessary.
In addition, we advise our clients in the area of remuneration law, which is subdivided into billing of SHI-accredited (EBM/BEMA) and private medical services (GOÄ/GOZ) as well as hospital remuneration (DRG). The obligation to provide services personally, target performance principle issues and proper invoicing as well as disputes about the medical necessity of treatments often lead to conflicts. We support practitioners in collecting outstanding payments and patients in defending against unjustified fee claims.
In order to prevent billing disputes, we check and draw up optional service agreements and private medical fee agreements.
Panel doctor /Dentist law
We advise dentists / doctors with regard to special legal issues arising from their participation in SHI-accredited medical care. This includes issues such as admission or authorisation to participate in SHI-accredited medical /dental care, authorisation to provide and charge for special services and the exercise of further activities in addition to the practice of an SHI-accredited physician as an attending physician, honorary or consultant physician or part-time employment at the hospital. In addition, we support our clients in matters of remuneration (benchmark and performance audits, extra-budgetary services, EBM, etc.).
Contract and corporate law
Both the cooperation between practitioners and the cooperation with providers of therapeutic appliances require individual contractual bases. This is where the aspects of company contracts, professional law, contract doctor law and tax law come together. The possibilities for cooperation, which have to be checked for suitability on the basis of concrete circumstances and individual goals, are manifold (joint practice, job-sharing partnership, practice sharing, medical care centre, etc.). We advise our clients on the choice of cooperation forms and take over the drafting of contracts. In this context, we support our clients in finding a solution that is in line with their interests and in meeting the requirements of the Association of Statutory Health Insurance Physicians and the case law.
Finally, we also advise on the sale and takeover of medical practices as well as the employment of physicians. In this respect, we point out the different options and draft corresponding contracts.
Further medical law issues
We also advise and represent our clients in all other matters relating to medical law.