Partnership company with limited professional liability in Baden-Württemberg now also for doctors
What is a PartGmbB?
The partnership company is - like the conventional partnership under civil law - a partnership. In the "classic" partnership company without limited professional liability, the partners are jointly and severally liable for the partnership's liabilities with their private assets in addition to the partnership's assets (Section 8 (1) PartGG). In the case of a PartGmbB, only the partnership's assets are liable to creditors for liabilities of the partnership due to the lack of professional practice (in particular treatment or information errors) if the partnership maintains professional liability insurance for this purpose as prescribed by law (§ 8 Para. 2 PartGG). The limitation of liability therefore only relates to professional practice errors and not, for example, to liability arising from a rental agreement or purchase agreement for practice equipment. Previously, there was no professional liability insurance for the company as required by law. This was changed by the law of February 4, 2021:
Legal requirements
The requirements for liability insurance can be found in Section 31 (3) HBKG. It states that:
"Partnership companies with limited professional liability fulfill the requirements of Section 8 (4) PartGG if they maintain sufficient liability insurance to cover damage caused in the exercise of their profession. The minimum sum insured is EUR 5,000,000 for each insured event. The insurer's benefits for all losses caused within the insurance year may be limited to the amount of the minimum sum insured multiplied by the number of partners. However, the maximum annual benefit for all losses caused in an insurance year must be at least four times the minimum sum insured."
Treating doctor still has unlimited liability!
However, the limitation of liability does not apply comprehensively. The attending physician still has unlimited liability if a claim is made against him due to an error in information or treatment: Although treatment and information errors are errors in the exercise of the profession, doctors, dentists and psychotherapists in particular are liable not only for a breach of the treatment contract but also for tortious claims by the patient for personal injury (Section 823 BGB). The legislator and the majority of the literature assume that the limitation of liability of the PartGmbB does not apply to such cases of tortious liability and that the acting party has unlimited liability in this respect or that its professional liability insurance applies.
Bundestag printed paper 17/10487, p. 11
This means that the attending physician of a PartGmbB is still liable without limitation with his private assets for treatment and information errors if the damage is not covered by his professional liability insurance! The advantage of the PartGmbB for doctors, dentists or psychotherapists is therefore primarily the limitation of liability for the respective partners of the acting doctor: unlike in the GbR, they cannot be held liable in the PartGmbB for the tortious conduct of their co-partners. The PartGmbB should now be considered as an alternative to the conventional civil law partnership. A change of legal form could also be attractive for existing companies. Many articles of association contain a clause stating that a change of legal form to a PartGmbB should take place as soon as the legal requirements for a PartGmbB have been met. Check your articles of association to see whether they contain such a clause and whether you want to implement the change of legal form.
Status: 08.09.2021