Emergency service: social insurance obligation for pool doctors
(Dental) doctors receive separate remuneration for providing emergency services. As a rule, emergency services are provided in emergency surgeries set up by the KV or KZV, which are often attached to dental clinics or hospitals, using the facilities, equipment and staff available there. Doctors and dentists working on a voluntary basis can inform the responsible KV or KZV of the period during which they are available to provide services. The KV or KZV then allocates the services. The assumption of services by pool doctors considerably relieves the burden on (dental) doctors in private practice. For the duration of their participation in the emergency service, the (dental) doctors are included in the contract medical care (§ 75 Para. 1b S. 5 SGB V). In the case now decided by the BSG, it had to be clarified whether a former contract dentist, who was no longer licensed to provide contract medical care after the sale of his practice and performed the emergency service organized by the KZV, was employed as a dependent employee during the provision of emergency services for the KZV Baden-Württemberg and was therefore subject to social insurance contributions.
The case
The plaintiff dentist had voluntarily participated in the emergency services organized by the KZV Baden-Württemberg in 2018 and 2019, even after selling his practice in 2017. The dentist provided the emergency service in the KZV's emergency service center; the KZV ensured that the premises were rented and equipped with equipment, materials and other personnel. The emergency service was also provided in these premises by other dentists participating in the statutory health insurance scheme.
The dentist could use a form to inform the KZV which shifts he wanted to take. On the basis of this, the KZV then drew up plans for the emergency service and assigned the dentist to this shift. During the shift, medical assistants were present alongside the dentist to assist and document. The plaintiff received a fixed hourly rate for his work, which was between 34 and 50 euros per hour, depending on the time of day.
After the dentist was no longer assigned to the emergency service by the KZV due to disagreements regarding treatment modalities, he turned to the German Federal Pension Insurance (DRV) after unsuccessful labor court proceedings and applied for a determination that an employment relationship subject to compulsory insurance existed. The DRV rejected this, the dentist brought an action before the competent social court (SG), lost at first instance and finally also at second instance before the Baden-Württemberg Regional Social Court (LSG) (judgment of 20.07.2021, L 11 BA 3136/20).
The LSG had denied the existence of dependent employment and stated that the dentist had been called to the emergency service on the basis of an administrative act requiring cooperation and had participated in the provision of care by contract doctors in accordance with Section 75 (1b) sentence 5 SGB V. There was no scope for the conclusion of a service or employment contract. (para. 29)
According to the established case law of the BSG, the existence of dependent employment pursuant to Section 7 para. 1 sentence 1 SGB IV requires that the employee is personally dependent on the employer. In the case of employment in an external company, this is the case if the employee is integrated into the company and is subject to the employer's right to issue instructions covering the time, duration, place and type of performance. A self-employed activity, on the other hand, is characterized by the employee's own entrepreneurial risk, the existence of his own business premises, the possibility of disposing of his own labor and the essentially freely organized activity and working hours. (para. 30)
It should also be taken into account that the KZV's statutory mandate to ensure the provision of care also includes ensuring the provision of care by contract doctors during non-office hours. (para. 31)
In the opinion of the LSG, contract dentists who participate in the emergency service are not integrated into an external company and are not subject to any instructions. According to the LSG, the organization of the emergency service is a consequence of the general professional duties of physicians and especially and primarily of self-employed physicians. The organization of the emergency service by the Kassen(zahn)ärztlichen Vereinigungen does not lead to the establishment of a "business" in the sense of employment law. Although the K(Z)V is responsible for the emergency service, it is not the employer of the doctors providing the emergency service. Even if the emergency service takes place in established emergency centers, this only represents an organization of the cooperation of independently operating units in the functional sense and does not lead to an organization in the institutional sense. The dentists on emergency duty each decide on their emergency duty activities under their own dental responsibility. The LSG saw no difference between this and the basic constellation of the emergency service, which is provided from the practice location, and the provision of the emergency service in an emergency practice. (para. 34) In the opinion of the LSG, this should also not be assessed differently if the participant no longer has their own practice. (para. 35)
Decision of the BSG of 24.10.2023 (B 12 R 9/21 R)
In its ruling of 24.10.2023, the BSG overturned the decision of the LSG Baden-Württemberg and upheld the dentist's claim. The mere fact that a dentist participates in SHI-accredited medical care does not automatically mean that he is self-employed. Rather, as with other activities, the circumstances of the individual case must be taken into account.
In the opinion of the BSG, the fact that the plaintiff was active in the processes organized by the KZV spoke against the assumption of self-employment. He had no decisive and certainly no entrepreneurial influence on the processes. He fitted into the predetermined structure in an externally determined manner and was paid by the hour regardless of specific treatments. He had no billing authority. The BSG did not consider it decisive that the dentist acted freely and independently as a dentist in the specific medical treatment. The BSG therefore considered the dentist to be a dependent employee and therefore subject to social security contributions.
Conclusion
The reasons for the decision have not yet been published. However, the result is in line with the most recent decisions of the BSG on the assumption of dependent employment for doctors.
The BSG had already ruled in 2019 that fee-based physicians are regularly employed in hospitals (judgment of 4 June 2019, B 12 R 11/18 R lead case) and based its decision on the fact that fee-based physicians are integrated into the hospital's specified work organization and use the material and personnel resources provided. In 2021, the BSG (judgment of 19.10.2021, B 12 KR 29/19 R) ruled for emergency doctors that they are also integrated into the public rescue service, as they are subject, among other things, to the obligation to be in the vicinity of the emergency doctor's vehicle and also use external personnel and rescue equipment. Also on 19.10.2021, the BSG ruled in the case of substitution in a joint practice that substitution work in a third-party practice also constitutes dependent employment. Here, too, the court based its decision on the integration into the work processes of the practice, the cooperation with the practice staff based on the division of labor and the use of facilities and resources of the joint practice.
As a result, the BSG's decision comes as no surprise. However, the consequences for the doctors and dentists concerned are likely to be considerable. As on-call duty is often carried out by pool doctors, the main option for those obliged to participate is to employ colleagues in their own practice who are willing to stand in for them. The same applies to KV and KZV. To put it mildly, this is unfortunate for the on-call duty system.
It remains to be seen if, when and how the legislator will react to the situation. Everyone should be interested in a functioning emergency system in the interests of the population as a whole. The decision will certainly not replenish the pension funds, as doctors and dentists have to make regular contributions to the pension schemes.