Should doctors be held liable for negligence

Liability of the employed doctor in the practice

More and more doctors are employed in a branch. The question often arises as to who is responsible for the professional misconduct of the employed doctor.

by Dirk Schulenburg and Katharina Eibl

The potential problems are manifold: The most prominent case is that patients file claims for damages because of a malpractice. Reimbursement of fees from both the statutory health insurance associations and from patients or their insurance companies due to violation of the provisions of the fee schedule for doctors may also be considered. Claims for damages due to violation of personal rights in the event of a breach of confidentiality by the employee are conceivable, but also claims, for example in the event of an accident in the practice car during home visits.

Liability for treatment errors in external relationships

The right to compensation and compensation for pain and suffering after Patient Rights Act (§ 630 a BGB) is directed against the person who agrees to the medical treatment of the patient (practitioner). This person can, but does not have to be, the person who actually performed the treatment.

The employed doctor is only a vicarious agent for the employer's contractual obligations, so that the employee's violations are attributed to the employer. Since the treatment contract is concluded with the practice owner, he is liable as the patient's contractual partner for the mistakes made by his employee in the treatment contract.

In addition to contractual liability, there is also tortious liability, which can directly affect the employee. In this case, the employed doctor is personally liable for his own mistakes as a result of unlawful acts. This means that employees and employers are jointly and severally liable in the external relationship without restriction. This means that both are liable to the injured patient up to the full amount of the damage and must balance the liability shares internally. In the area of ​​allegations of malpractice, for procedural reasons, both the employer and the treating employed doctor are often called upon by the patient, since neither of them can then be considered as witnesses in the process.

Internal liability

In the internal relationship with the employer, the employee can invoke the internal labor law entitlement to exemption (employee privilege).

In the case of business-related activities, the employer is obliged to (partially) bear the costs internally. The scope of this indemnification is based on the degree of fault of the acting party. This is divided into light or simple, normal or medium, gross negligence and willful misconduct. Simple negligence leads to a full release from liability. In principle, intent and gross negligence result in full liability of the employee in addition to the employer. In the context of normal negligence, there is a damage ratio that depends on a weighing of the overall circumstances in the individual case (see decision of the Grand Senate of the BAG of September 27, 1994; Ref .: -GS 1/89 (A)).

Accident with a practice car

The same principles of limitation of employee liability also apply to all other work that is initiated by the employer and performed on the basis of the employment relationship. If the employed doctor causes damage in the course of his medical work, a differentiation must be made when determining his share of liability according to the degree of his fault. If, for example, he causes a traffic accident in the context of moderate negligence, his liability quota must be determined according to the circumstances of the individual case (BAG, judgment of 05.02.2004, AZ: 8 AZR 91/03).

Liability clause in employment contracts

Employment (and collective bargaining) arrangements that deviate from the exemptions shown to the detriment of the employee are ineffective. The principles governing the limitation of the employee's liability for work-related activities are unilaterally mandatory employee protection law (BAG, loc. Cit.).

Contract doctor obligations

The employer is liable to the Association of Statutory Health Insurance Physicians (in addition to the employed doctor, if the latter is after § 77 SGB V works at least 10 hours a week and is therefore also a member of the KV) for the fulfillment of the contractual medical obligations by the employed doctor, as for his own work. This also includes the duty of the contract doctor to invoice the services provided more precisely. Corresponding recourse can quickly threaten the existence of the reimbursement sums, which are often only partially enforceable even in the event of recourse against the employee internally.

Fee reclamation for private patients

Even if the employer leaves the billing of the private services to the employed doctor in his name, the latter acts as his vicarious agent, so that the employer is responsible for the correctness of the bills and, if necessary, is responsible for any reclaims.

Violations of professional law

Every doctor is responsible for compliance with the professional code. The employed doctor is also responsible for ensuring that he does not violate the regulations of the professional code.

Dr. iur. Dirk Schulenburg, MBA, is legal advisor to the North Rhine Medical Association and Katharina Eibl, specialist lawyer for medical law, is a consultant in the legal department.