Federal Court of Justice, judgement of 4 April 2024 – III ZR 38/23

The #Bundesgerichtshof (BGH) clarified in its judgement of 4 April 2024, rejecting the decision of the OLG Frankfurt am Main (OLG, judgement of 29 November 2023 – 6 U 82/23), that the #GOÄ also applies to the #billing of medical services if the #treatment contract is concluded between a patient and a corporation.

The plaintiff claimed reimbursement of treatment costs from the defendant university hospital. The plaintiff, who had statutory health insurance, was receiving medical treatment from the defendant for a prostate carcinoma. The parties agreed that the innovative Cyberknife proce-dure should be used. (…) The treatment is usually carried out on an outpatient basis. The procedure is not included in the standardised assessment scale (EBM) for patients with sta-tutory health insurance and is therefore not included in the catalogue of services covered by the statutory health insurance funds.

The plaintiff’s health insurance company refused to cover the costs. The defendant informed the plaintiff of the refusal to cover the costs and informed him that he would have to pay the costs himself if he wanted the Cyberknife treatment. The plaintiff then signed a declaration on 16 April 2020 in which he confirmed that he would pay the costs incurred in the amount of €10,633 after the treatment had been completed. The plaintiff asserted, among other things, that as a flat-rate price agreement, the declaration of assumption of costs contradicted the provisions of the GOÄ.

The plaintiff’s appeal before the BGH was successful. The defendant clinic was ordered to make repayment.

The #fee agreement was null and void as it violated the provisions of the GOÄ. The outpatient medical services provided in the present case would contradict the provisions of the GOÄ. The scope of application described in Section 1 (1) GOÄ does not require that the claimant and contractual partner of the patient is a doctor, but that the remuneration is claimed for the professional services of a doctor. The GOÄ is therefore also applicable if the treatment contract is concluded with a legal entity, for example a hospital operator, and the (outpatient) services are provided by doctors who are only working in the context of an employment or civil service relationship in the fulfilment of their own official duties and do not enter into a contractual relationship with the patient themselves.

According to Section 2 (1) sentence 1 GOÄ, only a different fee amount may be set. The ag-reement of a different number of points (§ 5 para. 1 sentence 2 GOÄ) or a different point value (§ 5 para. 1 sentence 3 GOÄ) is inadmissible. According to Section 2 (2) sentence 1 GOÄ, in order for a deviating fee agreement to be valid, an individual agreement between the doctor and the payer is required in each individual case, which must be made in a document that must contain the number and name of the service, the rate of increase and the agreed amount in order to ensure sufficient transparency (Section 2 (2) sentence 2).

Outpatient medical services are also to be billed in accordance with the GOÄ if the treatment contract is concluded with a legal entity (e.g. a hospital operator) or a medical care centre (MVZ) and the services are provided by doctors in an employment or civil servant relations-hip. This is based on the wording of Section 1 (1) GOÄ, according to which the application of the GOÄ depends on the provision of ‘professional services by doctors’ and it is irrelevant with whom the patient concludes the treatment contract. Since the scale of fees aims to achieve a balance of interests between those who provide the services and those who are obliged to pay for them, it necessarily applies whenever the professional services of doctors are billed, irrespective of whether the doctor or a third party (legal entity) has become the pa-tient’s contractual partner.

According to the broad wording of Section 1 (1) GOÄ, the regulation applies to all ‘professional services provided by doctors’, without differentiating between services provided on the basis of a treatment contract between doctor and patient or by doctors in the context of an employ-ment or civil servant relationship without their own contractual relationship with the patient.

The objection that Cyberknife radiotherapy has not yet been listed in the GOÄ fee schedule cannot be accepted either. According to Section 6 (2) GOÄ, independent services that are not included in the fee schedule can be charged in accordance with a service in the fee schedule that is equivalent in terms of type, cost and time (e.g. Section O: Radiological diagnostics, nuclear medicine, magnetic resonance imaging and radiotherapy).

Practical advice

The decision of the BGH corrects the content of the contrary decision of the Higher Regional Court of Frankfurt am Main from November 2023 (judgement of 9 November 2023 – 4 U 82/23).

In a seemingly sensational judgement, the OLG had ruled that only doctors, as contractual partners of patients under the treatment contract, were addressees of the GOÄ. Therefore, according to the OLG, corporations such as a Ärzte-GmbH etc. could freely agree prices if they concluded the treatment contract with the patient and had the treatment service owed provided by an employed doctor or a fee-based doctor who was not paid by the patient but by the company. In the decision cited here, the OLG had also based its decision primarily on the wording of Section 1 (1) GOÄ, but came to the conclusion that remuneration for services not provided by a doctor should not be subject to the scope of application of the GOÄ.

With the current decision of the BGH, this future path is closed, regardless of who the treat-ment contract is concluded with. If medical services are the subject of the invoice, the GOÄ is applicable.

The decision does not affect the constellations of agreements between hospital operators and registered doctors regarding their involvement in the context of general hospital services. These are still not subject to the provisions of the GOÄ (see also BGH, judgement of 12 Sep-tember 2009 – III ZR 110/09). This is because in these cases it is not a question of the balan-ce between the interests of the doctors and the interests of those obliged to pay the fees (pa-tients) required in the authorisation standard of Section 11 BÄO, but rather of the integration and remuneration of a medical activity, which is neither directly owed to the private pati-ent/self-payer nor provided by a contracted physician. At the same time, however, the Senate has expressed that the provisions of the GOÄ apply in principle when medical services are invoiced to a patient, irrespective of who the contractual partner is.