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Medical Malpractice Law

Criminal investigations against physicians are often based on allegations of medical malpractice. In these cases, the legal support of physicians requires a differentiated approach, also taking civil and employment law aspects into consideration. It is usually necessary to establish the process of diagnosis, therapy or surgery in detail and include medical experts to clarify the allegations and help prepare an effective defence.

Physicians and directors of hospitals are also investigated for submitting false claims. It requires special expertise to consult the relevant provisions for submitting claims for medical services towards the respective insurance providers. In this context, registered physicians are also accused of intentionally submitting false claims. Due to the complexity of the matter, investigations are often led by specialized investigation teams of the state police offices and under close cooperation with the Association of Statutory Health Insurance Physicians and social security carriers.

Investigations into physicians pose specific risks for their professional life. Apart from criminal penalties there are penalizations according to professional law through the respective medical associations, which may even result in license withdrawal.

Medical Criminal Law

In particular medical criminal law covers criminal investigations on suspicion of violation of German drug laws (Arzneimittelgesetz, AMG), of the Law on Advertising in the Health Care System (Heilmittelwerbegesetz, HeilmWG) and the Medical Devices Act (Medizinproduktegesetz, MPG). In this context, product safety and product marketing take centre stage. Criminal investigations usually target senior staff members of pharmaceutical companies and medical device manufacturers.

In addition, sponsoring activities by pharmaceutical companies and medical device manufacturers have recently been increasingly subject to criminal investigations.

Negligent killing, section 222 Criminal Code

If a patient under medical treatment passes away, allegations of negligent killing may be made. This provision requires that a specific, negligent conduct can be proven to be the cause of the death. Furnishing evidence in these cases is a complex matter, especially when several physicians and other members of staff are involved, as is often the case, and with different responsibilities and the necessity to react in critical situations. Negligent conduct may not be prematurely assumed. Applicable requirements have to be determined based on the specific situation.

Offences against physical integrity, sections 223ff. Criminal Code

Physicians can be suspected of offences of bodily harm. Even surgical treatment according to the state of the art of medical practice generally constitutes an offence against physical integrity – which is usually justified through consent. Effective consent, however, requires that the patient is thoroughly informed. In this respect, legal requirements are relatively high.

Allegations of negligent bodily harm play an increasingly important role in the medical field. Section 229 of the Criminal Code provides that negligence results in bodily harm. This covers what in everyday language is referred to medical malpractice. Just as in cases of negligent killing, a specific conduct resulting in bodily injury must be proven.

Submission of false claims by physicians

Submission of false claims by physicians is covered by section 263 Criminal Code regarding fraud. The submission of medical services is a highly complex legal field.

Cases in which services have been invoiced that have not been provided are unambiguous. However, there have been cases in the past when services were invoiced and submitted that had been provided but not by the invoicing party. Thus, there is always an interplay between legal provisions related to medical services and their submission and the requirements for the definition of fraud.

Jurisdiction interprets medical billing according to its normative meaning. In doing so, the characteristic of deceit can be justified by referring to legal provisions. Especially problematic are cases of several (allegedly) incorrect invoices, in which the amount of damage can often be considerable. This may result in severe interventions – such as attachment orders ensuring money claims – even during the investigation.

Submission of false claims in the context of nursing services

Recently, several criminal investigations in allegations of fraud in the context of nursing services have attracted public attention. Here too, there is an interplay between criminal law norms and norms outside criminal law, for instance those of social law.

Penalties for the submission of false claims

The submission of false claims is punished severely – in the event of a conviction. The individual situation is decisive, particularly the amount of damage.

Incidental consequences are often of particular importance: because the criminal offence is related to the professional career, a conviction may result in license withdrawal. Other registrations and permissions may also be withdrawn. In addition to license withdrawal, defendants often face considerable financial burdens.

Incidental consequences: licence withdrawal

The licence to practise medicine is the basis of a physician’s professional career. Licence withdrawal has thus existential consequences. Legal requirements for licence withdrawal are relatively high. It will, however, be considered in the event of intentional criminal conduct related to the professional activity. Central is, therefore, the term ‘discreditable conduct’ in the sense of the Federal Medical Code. It has to be taken into consideration how close the misconduct has been in relation to the professional activity and how grave this misconduct has been. If, for example, medical services are predicated on personal financial considerations (possibly to the disadvantage of the patients), as can be the case with corruption in the health care system, revocation stands to reason. Jurisdiction also recognizes criminal conduct outside direct medical care, such as tax evasion, which may also result in licence withdrawal.

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