In a nutshell:

1. in its judgement of 13 March 2025 (III ZR 426/23), the Federal Court of Justice (BGH) ruled that the respective hospital operator is entitled to its own (i.e. original) liquidation right within the framework of an elective services agreement.

The decision should be emphasised because it has now answered this longdisputed question of principle in favour of the hospital operators. In future, a separate supplementary doctor’s contract will no longer be required when concluding a total hospitalisation contract. Rather, the hospital operator can exercise this right of choice itself in accordance with the provisions of the GOÄ if the doctor of choice does not have his own right of liquidation.

2. the number of permanent representatives for elective medical services is not necessarily limited.

The BGH also commented on the number of authorised representatives for elective physicians. In the case on which the judgement was based, the hospital’s agreement on elective services included a tabular list of elective doctors. Each clinic and department was assigned an elective doctor, and a total of 24 doctors were designated as elective doctors. For several of these doctors, the table contained several substitution areas that were differentiated according to clinic location, ward or specialist subarea. A ‘permanent deputy’ was assigned to each of these. All other elective physicians had only one ‘permanent representative’ each.

The question of how many permanent deputies an elective doctor may have has also not yet been answered uniformly in case law.

In this judgement, the validity of such an elective services agreement was confirmed. The fact that the deputy regulation referred to several elective doctors and that more than one permanent deputy was appointed for some of the elective doctors was permissible. This is because the ‘permanent representatives’ were appointed on a ‘functionrelated’ basis. From the patient’s point of view, it was therefore sufficiently clear which doctor of choice was specifically considered for the respective treatment. Furthermore, a limitation to only one medical representative cannot be taken from the scale of fees for doctors.

However, the prerequisite is always that the doctor of choice has an ‘outstanding qualification’ or ‘special experience’ that goes beyond the specialist standard. It is not necessary for the elective doctor to also hold a managerial position in the hospital.