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Hospital search

from
Dorothea Wagner
Lawyer
Specialist in medical law

Give me a call: 0261 - 404 99 46
E-Mail:

Markus Schmuck
Lawyer
Specialist in criminal law

Give me a call: 0261 - 404 99 25
E-Mail:

Hospitals are regularly searched by public prosecutors in connection with criminal charges. Such search measures represent a not inconsiderable interference with the organizational processes of the hospital and influence patients' trust in the treatment competence of doctors. This article is intended to show all hospital managers the legal options available to the public prosecutor's office and how to defend against them.

I. Problem

The most common groups of cases for a search in a hospital are accusations of false billing (suspicion of fraud) that can be directed against doctors and the hospital administration itself, as well as accusations against doctors and employees of negligentnegligent homicide or bodily injury. However, it is very rare for the hospital itself, i.e. the legal entity or the organization itself, to be the defendant. Consequently, the search is always conducted at the third party (the non-suspect). This results in special circumstances.

II. "Third party"

103 StPO regulates the search of the "third party". Unlike the search of the suspect himself, it requires not only a presumption, but proven facts that justify the assumption that the evidence will be found. The intended search for evidence is not sufficient, nor are mere suspicions. The legislator wanted to prevent the "search for evidence" at the "third party". Particularly in cases in which the prosecuting authorities have no evidence but have been approached by a whistle-blower, a search that is carried out in spite of this violates applicable law and should be challenged at all costs. This is also true in view of the principle of proportionality, which should be given particular consideration in the case of a search in a hospital, but often enough is not given sufficient consideration. The Federal Constitutional Court has consistently ruled that "the search must be proportionate." That is, it must be in reasonable proportion to the seriousness of the offense and the strength of the suspicion.

III. Content of the order

The content of the order must also be checked on the premises and then later by the defense counsel. In one of its landmark rulings, the Federal Constitutional Court stated: "A search warrant that contains no factual information whatsoever regarding the content of the accusation and does not mention any grounds for evidence suggests that there is a lack of independent examination of the conditions for ordering the search. It also does not allow the accused to properly defend himself against the accusation of the offense and to control the search on his part, as well as to counteract any escalation in its execution within the scope of his legal options from the outset.

This means that every search warrant must present facts that – based on their correctness – would be criminally relevant. If no comprehensible facts are presented, it can already be assumed that the search was carried out "for the mere purpose of searching". This would lead to the search being unlawful.

IV. Options for the hospital

The "third party", in this case the hospital as a legal entity, can and should - after examination - file an appeal against the search warrant. If the content of the decision does not meet the requirements of the Federal Constitutional Court, the court of appeal will annul the decision and determine that the search was unlawful. The documents/evidence taken must be handed over immediately. This would significantly strengthen the position of the hospital and the suspected persons. As a rule, public prosecutors' offices discontinue preliminary proceedings shortly after a successful appeal.

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.