Current Federal Social Court (BSG) ruling of 4 June: fee-based physicians in hospitals are regularly obliged to contribute to social insurance

Court rulings impose in massive restrictions on hospital staff sovereignty// Justification for the obligation to pay contributions: Integration of fee-based physicians into the work organisation is comparable to that of employed physicians// The assignment of fee-based physicians must be reviewed retroactively until 2015 and terminated if necessary.

A while ago, the Federal Social Court (BSG) had already declared that it wanted to comprehensively clarify this year the social insurance status of self-employed fee earners in nursing care for the sick and elderly. On 4 June, the BSG issued its first guidance rulings on the social security obligation of fee-based physicians, which will massively restrict the sovereignty of hospitals over their personnel.

From the point of view of the BSG, a physician working in a hospital is regularly obliged to contribute to social insurance. The regulation in the professional code of conduct of physicians "physicians may not accept instructions from non-physicians with regard to their medical decisions" does not automatically mean that physicians are exempt from social insurance contributions. A physician working in a hospital is usually rather integrated into the work organisation of the respective institution and therefore employed in a dependent manner. This can be established -so the BSG- on the basis of four criteria:

• The fee-based physician works in an organisation over which structure the physician has no entrepreneurial influence.
• He uses the personnel and material resources of the hospital and therefore does not contribute his own operating resources.
• A fee-based physician and a physician employed by the hospital are equally involved in the operating procedures of the hospital.
• The fee-based physician does not have an entrepreneurial scope for decision-making.

In contrast, the fee - which is often significantly higher than that of an employee - is only a secondary criterion. On the contrary, the obligation to pay social security contributions cannot be suspended in order to increase the attractiveness of the medical profession through higher remuneration.

The BSG ruling has far-reaching consequences for hospital owners: Current assignments of a fee-based physician must be measured against this catalogue of criteria and, if necessary, be optimised or terminated. In addition, assignments of the not yet statute-barred past - 2015 until today - must be reconsidered. Otherwise, there is a threat of criminal liability on the part of the management, the withdrawal of the licence to practise medicine for the medical management and a considerable increase in any additional payment amounts by means of late payment surcharges as well as by extrapolation to a fictitious gross wage.

Not least, the special forms of an independent physician will have to be measured against these principles, e.g. the attending physician or consultant physician as well as certain constellations of medical care centres. In so far, the Federal Social Court has made it clear that it will not recognise a "species protection" for physicians. However, the BSG has also indicated that it wants to allow exemptions from social security contributions where these criteria are not met.

The BSG rulings on the social security obligation of a fee-based physician will be followed on 7 June by several key decisions on the status of nurses and operating surgical nurses. However, the most recent decisions do not bode well for the flexibility of personnel in hospitals.