Restrictions on flat-rate fees for medical services
Departure from previous case law
The case in question involved the agreement of a flat fee between a university clinic and a patient for cyberknife treatment, which was not yet reimbursed by all health insurance companies at the time. The BGH ruled that it is not decisive whether the patient concludes the treatment contract with the attending physician or with a legal entity - such as the clinic in this case. The BGH thus clearly deviates from the previously established case law of the Federal Social Court (BSG) and obliges legal entities to bill self-paying patients for outpatient services provided by doctors employed by them in accordance with the GOÄ.
A brief look back: In its ruling of September 11, 2012, case no. B1 KR 3/12, the BSG ruled for the first time that private clinics - as legal entities - are not bound by the GOÄ. In its decision, the BSG based its arguments closely on the wording of Section 1 (1) GOÄ.
§ Section 1 (1) GOÄ regulates the scope of application of the federal regulation and reads as follows: "The remuneration for the professional services of physicians shall be determined in accordance with this regulation, unless otherwise provided by federal law."
The BSG interpreted the wording of the provision in such a way that the GOÄ can only be addressed to doctors as contractual partners. As a result, in the opinion of the BSG, the GOÄ did not apply if the patient had concluded the treatment contract with a legal entity - e.g. the hospital operator. Many subsequent court decisions have referred to this case law. The BSG itself confirmed the ruling of the BSG from 2012 in its judgment of 11.07.2017, ref.: B 1 KR 1/17 and the Regional Court of Duisburg in its judgment of 24.11.2022, ref.: 12 O 190/21 and the Higher Regional Court of Frankfurt in its decision of 21.09.2023, ref.: 6 W 69/23 and judgment of 09.11.2023, ref.: 6 U 82/23.
The new decision of the BGH now marks a departure from this and thus a mandatory binding of the GOÄ as a price law for doctors' professional services. The background to this is the broad interpretation of Section 1 (1) GOÄ by the BGH and the argument based on the meaning and purpose of the GOÄ. On the one hand, this is seen as protecting patients or cost bearers who are liable to pay from excessive financial burdens. Furthermore, the GOÄ serves to achieve an appropriate balance of interests between those who provide the services and those who are obliged to pay for them.
The ruling of the BGH is based on a situation that takes place in the outpatient sector, meaning that the decision cannot be transferred to inpatient services without further ado. The question therefore remains as to whether the GOÄ also applies to services provided in the inpatient sector. In our view, there are many arguments against this, as other federal laws (e.g. KHG and KHEntgG) regulate this area.
Telemedical services at a flat rate?
Services provided via telemedicine are not exempt from this development either. This was recently decided by the Düsseldorf Regional Court (case no.: 38 O 174/23), which rejected flat-rate fees for remote treatments. According to the Düsseldorf Regional Court, remote dermatological treatment and the medical services provided in this context are subject to the GOÄ, which does not provide for flat rates.
The decision is based on a remote treatment via app, which was developed years ago by several dermatologists and through which dermatological services are offered at a flat rate. In this case, the Düsseldorf Regional Court also criticized the unauthorized assignment of service providers due to the use of partner online pharmacies. The specific naming of two pharmacies as "partners" constituted a clear recommendation or referral and was therefore contrary to medical professional law.
The ruling is not yet legally binding, but is in the same direction as the BGH in its most recent ruling, according to which the GOÄ applies as binding price law for doctors for all medical services. This current development must therefore also be taken into account in telemedical business models.
The latest ruling by the BGH and the Düsseldorf Regional Court marks a significant turnaround in the case law on GOÄ. With the clear statement that the GOÄ is binding for all (at least outpatient) medical services that are invoiced to patients.
The previous case law has been significantly amended to the effect that the GOÄ also applies if the contractual partner is a legal entity. This is also an adjustment to the increasing spread of legal entities in the provision of medical services, e.g. through the increasing spread of medical care centers (MVZ) and medical associations. The BGH has made it unmistakably clear that the protection of patients and cost bearers from excessive financial burdens has priority.