A licensed medical practitioner, for the contractual care the prescription of pharmaceuticals not as an official appointed to perform public administration tasks, nor as representative of the statutory health insurance companies within the meaning of Section 299 of the Fifth Social Code. This was decided by the Federal Court of Justice (BGH).
There is no question that the system of statutory health insurance as whole fulfills task resulting from the welfare state principle of Art perceived only by the individual insured but by the general public. However, the system of statutory medical care is designed in such way that the individual contracted doctor does not perform any public administration tasks. Rather, contract doctors practice their profession on freelance basis, even if participation in contract medical care is not only justified but also obliged. The contract doctor is not an employee or mere function holder of public authority. He does not work on the basis of position integrated in hierarchical structure, but on the basis of the individual, free selection of the insured persons. He thus occupies specially designed intermediate position that distinguishes him from the doctor employed in public hospital, but also from those doctors who work in state system of outpatient medical care based on the model of polyclinic system. The relationship between the insured person and the contract doctor is essentially determined by elements of personal trust and freedom of design that is beyond the scope of the health insurance companies. The insured can freely choose from the doctors licensed to provide medical services. The form and duration of the treatment are beyond the control of the health insurances and result solely from the personal relationship between patient and contract doctor. The prescription of drugs, therapeutic aids and aids does not justify the assumption that the contract doctor is acting in the public administration. Although the ordinance specifies the statutory entitlement to benefits of the insured person for benefits in kind, it is an inseparable part of the medical treatment and takes place within the personal trust between doctor and insured person. In addition, civil law treatment relationship is established between the contract doctor and the patient. If the treatment contract is poorly fulfilled, the doctor is not liable according to official principles.
A licensed medical practitioner, for the contractual care the prescription of pharmaceuticals not as an official appointed to perform public administration tasks, nor as representative of the statutory health insurance companies within the meaning of Section 299 of the Fifth Social Code. This was decided by the Federal Court of Justice (BGH).
There is no question that the system of statutory health insurance as whole fulfills task resulting from the welfare state principle of Art perceived only by the individual insured but by the general public. However, the system of statutory medical care is designed in such way that the individual contracted doctor does not perform any public administration tasks. Rather, contract doctors practice their profession on freelance basis, even if participation in contract medical care is not only justified but also obliged. The contract doctor is not an employee or mere function holder of public authority. He does not work on the basis of position integrated in hierarchical structure, but on the basis of the individual, free selection of the insured persons. He thus occupies specially designed intermediate position that distinguishes him from the doctor employed in public hospital, but also from those doctors who work in state system of outpatient medical care based on the model of polyclinic system. The relationship between the insured person and the contract doctor is essentially determined by elements of personal trust and freedom of design that is beyond the scope of the health insurance companies. The insured can freely choose from the doctors licensed to provide medical services. The form and duration of the treatment are beyond the control of the health insurances and result solely from the personal relationship between patient and contract doctor. The prescription of drugs, therapeutic aids and aids does not justify the assumption that the contract doctor is acting in the public administration. Although the ordinance specifies the statutory entitlement to benefits of the insured person for benefits in kind, it is an inseparable part of the medical treatment and takes place within the personal trust between doctor and insured person. In addition, civil law treatment relationship is established between the contract doctor and the patient. If the treatment contract is poorly fulfilled, the doctor is not liable according to official principles.The fact that the civil legal relationship is overlaid by the provisions of social security law does not change this. Since the drafting of contract doctor law has been entrusted by the legislator to the setting of collective agreements and contractual provisions between contract doctors and their representatives, the statutory health insurance associations on the one hand and the health insurance funds on the other hand, within the framework of system of self-administration, those involved in statutory health care meet in cooperative manner and thus on level of equality. This legally prescribed concept of co-ordinated cooperation stands in the way of acceptance of an appointment of the contract doctor by the statutory health insurance companies. (BGH, decision of March 29, 2012, Az .: GSSt 2/11)
Attorney Barbara Berner
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