Are Statutory Health Physicians Corruptible? Note on the Upcoming Ruling of the Federal Court of Justice

On March 17, the Federal Court of Justice will decide (Case 3 StR 458/10) whether physicians in a practice are liable to prosecution for corruption when accepting benefits from pharmaceutical or medical device companies.

In the case at issue, a medical products manufacturing company entered into contracts with health insurer AOK on the delivery of electrical stimulation therapy equipment to patients. At the same time, it provided physicians with high-quality equipment for their practice and exempted them from paying compensation if the physician prescribed a stimulating current therapy device.

Stade Regional court nevertheless rejected the request of the Verden (Aller) public prosecutor's office to absorb the revenue generated from the medical device manufacturer. It did not consider the offense of bribery and corruption to be met. Statutory health insurance physicians are, in any case where they prescribe medical devices, no "representative" of the health insurance companies and thus not able to be perpetrators of corruption in business transactions. The appeal of the public prosecutor's office is directed against this view.

"If the Federal Court of Justice affirms the ability of statutory health physicians to be perpetrators, the pharmaceutical industry will have to rethink their marketing activities. Practice equipment, invitations to physician trips and particularly reimbursements will then fall under the scope of application of the bribery regulations," explained Dr. Andre-M. Szesny, LL.M., lawyer at the firm of Heuking Kühn Lüer Wojtek.

The Federal Court of Justice will now have to decide the dispute over the legal status of statutory health physicians in criminal law on corruption.
Last year, two criminal courts (Ulm Local Court and Hamburg Regional Court) had convicted statutory health physicians of corruption for the first time.

Dr. Andre-M. Szesny, LL.M. will gladly be available for any additional information.

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