I. Introduction
In all criminal proceedings in which physicians are involved as suspects or defendants, in addition to the purely criminal defense by the criminal defense attorney, the professional and panel physician consequences must always be included in the consultation. After all, the client would not be pleased to lose his license to practice medicine or his panel doctor status without this outcome having been included in his evaluation in the criminal proceedings.
The following article is intended to provide an insight into the consequences for medical practitioners and panel doctors.
II License to practice medicine
1. Basics
§ 3 I S.1 Nr. 2 BÄO stipulates that the license to practice medicine is to be granted if the applicant "has not been guilty of any conduct showing unworthiness or unreliability for the practice of the medical profession". Section 5 II S. 1 BÄO in turn determines that "The approbation is to be revoked if the requirement according to § 3 I sentence 1 no. 2 has subsequently ceased to apply". Section 5 II p. 1 BÄO thus provides for the mandatory revocation of the license to practice medicine if, after it has been granted, the requirement under § 3 I p.1 no. 2 BÄO no longer applies, i.e. if, as a result of the physician's conduct after the license to practice medicine has been granted, it becomes apparent that the physician is unreliable or unworthy to practice the medical profession. Withdrawal of the license to practice medicine in the sense of a favoring administrative act is an encroachment on the freedom of choice of occupation guaranteed by Article 12 I 1 of the German Constitution.
A license to practice medicine can only be revoked in its entirety and not – even under certain conditions – in part. And since the ban on practising the profession also interferes with one's private and family life and can destroy the life plans of those affected forever, such an intervention must be suitable, necessary and proportionate in the sense of the three-step theory of the Federal Constitutional Court necessary and proportionate in order to protect the important common good of health care for the individual patient and the population. On the other hand, the weight that the legislature has given to the dignity and reliability for theexercise of the medical profession, explains on the other hand, that if the conditions of § 3 I sentence 1 no. 2 BÄO are not met, the competent authority must revoke the license to practice.
The terms "unworthiness" and "unreliability" each have their own meaning. The essential difference between the two elements is a matter of time.
Unworthiness relates to a period in the past – usually the alleged criminal offenses. A physician is unworthy within the meaning of § 3 I No. 2 BÄO if, due to his or her behavior, he or she does not possess the reputation and trust among the population that is necessary to practice the medical profession. A physician is deemed unreliable within the meaning of Section 3 I No. 2 BäO if, based on his overall personality, he does not provide sufficient assurance that he will properly practice his profession. The criterion of unreliability requires a prognosis as to whether the behavior leading to unreliability is also to be expected in the future. For this, facts must justify the assumption that the physician will not observe his professional duties in the future. It depends on the personal comprehensive overall picture of the physician.
Either of these two characteristics can in itself lead to the revocation of the license to practice medicine. However, if the revocation is based on an overall assessment of the physician's alleged unreliability and unworthiness, the measure can only be reversed if the appeal refers to both elements. The question of unworthiness and unreliability to practice medicine is not judged solely on the basis of the direct doctor-patient relationship in the narrower sense. This is because the scope of application of §3 I p.1 no. 2 of the German Medical Association Code of Conduct extends not only to the core area of medical activity, but also covers all job-related actions and omissions and, depending on the severity of the offense, even criminal acts outside the professional sphere.
Accordingly, unreliability and unworthiness can also be the result of criminal offenses and misconduct that do not directly affect a physician's duties to patients. The assessment is based on the circumstances at the time the administrative proceedings are concluded. However, the more a crime can be considered job-related, the more serious the violation is usually considered.
Whether a physician has behaved in an unreliable or unworthy manner such that he can no longer practice his profession is always a matter of the individual case. (A current example of the assessment: a head physician at a Munich clinic was sentenced to eleven months in prison and a fine of 330 daily rates of 120 euros each for acceptance of benefits, embezzlement and fraud. He had used donations from pharmaceutical companies for his research institute to finance both a company outing and his 60th birthday, with the sponsors' knowledge. This was followed by the revocation of his license to practice medicine.
Other cases of unworthy behavior include regular false billing at the expense of the statutory health insurance, insurance fraud with accident vehicles while accepting the risk of harming other road users, or dealing in narcotics.
2. Utilization of the knowledge gained in the criminal proceedings:
According to § 24 I VwVfG and § 86 I VwGO, the authorities and the administrative court investigate the facts of the case ex officio, whereby they determine the nature and extent of the investigations themselves. If criminal proceedings have taken place in relation to the behavior that results in the unworthiness or unreliability of the physician, has taken place, the licensing authority is entitled to utilize the criminal files by way of documentary evidence and to subject the findings obtained in the criminal proceedings to its own evaluation as to whether they also justify a revocation of the license to practice medicine. The licensing authority is not bound by the results of the investigation. However, this does not mean that the licensing authority may not base its decision on the (adverse) findings in a criminal judgment if there are no indications that they are incorrect. The main proceedings, which are decisive for the formation of the criminal court's conviction, cannot be repeated in this respect. This also applies, or rather especially applies, in cases of a criminal conviction based on circumstantial evidence. It is then up to the person concerned to substantiate his objections to the findings in the criminal judgment that he believes to be erroneous in the criminal proceedings using the legal remedies provided for this purpose. If he does not avail himself of these legal remedies, he must accept the findings made in the criminal proceedings against him in the administrative proceedings as well. Particularly in the case of a legally binding order of summary punishment, the factual and legal findings contained therein are regularly made the basis for an official decision on the revocation of the license to practise medicine. Even if the defendant objects that he or she only accepted the order for payment in order to avoid a public hearing, the defendant is regularly not heard. Experience shows that the licensing authority will only very rarely conduct its own thorough investigation to review the available criminal investigation results.
The licensing authority already lacks the legal means to conduct such investigations because, for example, according to § 26; III; 1 VwVfG, there is no general duty for witnesses to testify. Furthermore, it is assumed that the investigation is regularly impeded by the passage of time. In particular, if a lawyer is representing the doctor in the criminal proceedings, it is also assumed that the doctor was aware of the professional consequences that would arise from this.
The authorities are therefore entitled to evaluate the witness statements and investigation results obtained in the preliminary/criminal proceedings to determine whether the core of the allegations are true and – if applicable, together with other allegations – whether sufficient conclusions can be drawn. evaluate whether the core of the allegations is true and – possibly together with other allegations – allow sufficient conclusions to be drawn regarding the existence of unworthiness or unreliability.
3. professional court proceedings – violation of the professional code of conduct
The standard for professional court proceedings is the respective state professional regulations. The professional court can impose the following sanctions on a physician who considers himself to have violated the law:
- warnings
- Reprimand
- Monetary fines
- Withdrawal of the right to vote and stand for election to the committees for a certain period of time
- declaration of unprofessional conduct.
The prerequisite for the initiation of professional court proceedings is an act unworthy of the profession. An act is unworthy of the profession if it is a culpable violation of the duties incumbent on a physician to maintain the reputation of his profession. As a rule, professional proceedings begin with the medical association becoming aware of an action unworthy of a doctor. The decision as to whether or not to initiate preliminary proceedings is taken by the board of the medical association.
As part of the preliminary proceedings, the physician has the opportunity to comment on the facts of the case that have come to the attention of the medical association and to present his or her legal opinion. It is up to the physician whether or not to comment on the matter during the preliminary proceedings. The physician concerned has a right to inspect the investigation documents. After the preliminary investigations have been completed, the board of the State Medical Association decides whether the investigations are to be discontinued or whether proceedings before the professional court are to be applied for. If the decision is in favor of an application, the State Medical Association submits an application to the professional court.
If the subject of the criminal proceedings is or was an act unworthy of a professional, additional professional punishment for the same incident is generally ruled out according to the principle of double jeopardy (ne bis in idem), unless there is a so-called professional overhang. This is the case if the criminal conviction does not cover the professional law violations that have also been committed, so that a professional law sanction is necessary to oblige the chamber member to fulfill his professional law obligations.
II. Contractual physician issues
1. Disciplinary proceedings
In addition to criminal proceedings and professional court proceedings, there are also disciplinary proceedings. These concern physicians who are integrated into the system of panel doctors for statutory health insurance. With this integration, the physicians are members of the Association of Panel Doctors. When the Association of Panel Doctors is established, it adopts a charter that regulates the disciplinary proceedings against its members.
The purpose of the disciplinary law is to ensure the order and integrity of the care provided by contract doctors. The means to this end are the various disciplinary measures. Unlike criminal penalties, these measures are not intended to be retributive or punitive. Rather, the measures are intended only to encourage the contract doctor to fulfill his duties correctly (special prevention) and to deter others from similar actions (general prevention). Disciplinary action and criminal punishment therefore differ significantly. The disciplinary committee's action therefore also loses its effect as soon as the panel doctor has left the panel doctor care (e.g. waiver of license or withdrawal), since then the action can no longer fulfill its function (encouraging the doctor to fulfill his contractual medical obligations) can no longer fulfill its function (to urge the doctor to fulfill his contractual medical obligations). However, this does not apply to the fine; it must be paid even after the termination of the license.
2. Revocation proceedings
Withdrawal of the panel doctor license only comes into view if, due to the severity of the violation, proper behavior can no longer be guaranteed in the future despite disciplinary action and it is no longer reasonable for the doctor to remain in the system of contractThe license must therefore be withdrawn, "unless a lesser measure than the withdrawal would be sufficient to effectively require the contract physician to fulfill his medical obligations." If the panel doctor has seriously violated his or her obligations as a panel doctor, the withdrawal requires no further factual elements other than the "gross violation of obligations".
A breach of duty is gross if it makes it necessary to withdraw the license to ensure the provision of health insurance services. This security is essentially based on the self-employed activity of the registered doctor in private practice, and therefore on the trust of the Association of Statutory Health Insurance Physicians and the health insurance funds, in particular with regard to the proper treatment of patients and the correctness of the billing.
According to established case law, the panel doctor has a "duty to bill for services with the utmost care", which he fulfills by entering the fee schedule numbers provided in the insured's treatment certificate (which now usually includes diagnoses) and requesting remuneration from the KV. The relevance of this obligation is emphasized everywhere. Its (negligent) non-observance will – in the best case – result in severe disciplinary action; in the case of violations with more than extremely slight culpability, the license must be expected to be withdrawn. The reason for this is generally considered to be the serious risks to the system in which the service is provided as a benefit in kind, which is then to be settled by the provider directly with the health insurance company. The proper provision of services cannot be controlled by the billing method of self-certification by the doctor ("blank check"). The system must be able to inspire confidence in the participants in the care provided by contracted doctors with regard to careful and correct billing. A breach of trust already sends a signal to the other participants and basically indicates an unsuitability for further participation.[20]
Summary:
Behind the usual "offer":confession in exchange for a 2-year suspended sentence or a plea bargain "penalty order with 90 daily rates" conceals a consequential risk for the doctor which regularly remains unnoticed in its extent and consequences. If the loss of the license to practice medicine or the admission as a panel doctor is likely to be unavoidable anyway, this should be emphasized by the defense at an early stage as a mitigating factor of some weight.
Presenting the professional consequences of a criminal conviction is part of comprehensive and proper legal representation in criminal proceedings in which a doctor is the defendant or the accused. The basics of this are also part of the criminal defense lawyer's tools of the trade.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.