Treatment contract
The treatment contract is a civil law contract between the treating practitioner and the patient for the payment of medical treatment. The treatment contract has been legally defined in Germany since 2013 in Sections 630a ff of the German Civil Code and is a special type of service contract .
Parties to the treatment contract
Parties to the treatment contract are, on the one hand, the person who promises the medical treatment of a patient (treating person) and, on the other hand, the person who undertakes to provide remuneration for it (patient). If a third party, for example the health insurance company, has to pay for the treatment, it does not become a party to the treatment contract.
In addition to doctors or dentists , psychological psychotherapists and child and adolescent psychotherapists, members of other health professions as treating persons can also conclude a treatment contract in accordance with Section 630a BGB, such as alternative practitioners , midwives , physiotherapists , masseurs, medical pool attendants, occupational therapists , speech therapists and others, but not against it Veterinarians , because they do not perform human medical treatment, neither do pharmacists, opticians and hearing aid acousticians.
Since the person accepting the treatment does not necessarily have to carry out the treatment himself, an institution that employs members of a medical profession can also conclude a treatment contract, for example a hospital operator or a joint practice that is a legal person .
In the case of legally incompetent patients, it is the legal or voluntary representatives, such as authorized representatives within the framework of a health care proxy related to medical questions , who conclude the contract. However, this does not make you a contracting party (cf. § 164 BGB).
The treatment contract does not require any form.
Main performance obligations
Treating
The treatment contract obliges the treating person to carry out proper treatment himself or to have it carried out by others, in accordance with the applicable generally recognized professional standards , unless otherwise agreed, § 630a BGB. A delegation of the treatment is basically possible, the special social law (e.g. § 15 Abs. 1 SGB V) or professional rules on delegation remain unaffected.
Treatment includes diagnostics and, if indicated, therapy. The treating person owes no treatment success, i.e. not the healing, but only a professional performance of the treatment. The treatment can also be used for cosmetic purposes, such as plastic surgery. In the non-medical health professions also covered by the term treating person, it can sometimes be difficult to define the correctness of a service due to a lack of corresponding scientifically defined standards.
Treatment obligation
According to Section 95, Paragraph 3, Clause 1 of the Social Code Book V, contract doctors are obliged to treat patients with statutory health insurance . This treatment obligation results from the concluded treatment contract, which is usually implied , i.e. from "coherent action", but is also concluded in writing or orally. However, this obligation can be broken in exceptional cases, for example:
- no presentation of the electronic health card (eGK). ( § 15 SGB V)
- Lack of trust
- Overwork of the doctor
- Failure to follow medical orders
- Request for services that go beyond adequate, appropriate, economical and necessary treatment ( Section 12 of the Social Code Book V)
- Unreasonable assumption of a treatment
- the patient harassed the doctor through constant unjustified complaints, constant nightly calls or demands for unnecessary house calls or insulted them
- Failure of the doctor due to illness
- Initiation of legal proceedings against the doctor
- requests specialist treatment from the doctor for which he is not licensed or qualified (specialist standard, specialist reservation)
- demands from his doctor an activity that is contrary to class, illegal or immoral (e.g. his own killing),
- Calculation of services not performed at the expense of the health insurance required, with actual performance of other, non-reimbursable treatments.
- Request the issuance of a false certificate
- Desire for ideal recipes
- Desiring unindicated treatments
- Requesting an unfounded sick leave
In emergencies, the obligation to treat follows from the professional regulations and, if applicable, from § 323c StGB ( failure to provide assistance ).
The doctor's obligation to treat is limited by the patient's right to self-determination . This means that the doctor is not required to carry out any treatment that the patient does not consent to.
patient
The patient owes the payment of the agreed remuneration. However, this does not apply if and to the extent that a third party is obliged to pay, mostly the health insurance company , in which around 90% of patients in Germany are insured. In the case of those with statutory health insurance, the attending physician who is a member of the Association of Statutory Health Insurance Physicians regularly has a public-law remuneration claim against the Association of Statutory Health Insurance Physicians in accordance with Section 85, Paragraph 4, Clauses 1 and 2 of SGB V. Compensation for services that are not included in the catalog of services of the statutory health insurance or the costs of which are not fully covered can be demanded directly from the patient with statutory health insurance, for example co-payments for IGeL or for dental treatments for dentures , additional payments for dental fillings , dental implants . According to Section 630c, Paragraph 3, Sentence 1 of the German Civil Code (BGB), in this case the doctor must provide information about the likely costs in writing . Even if the doctor does not have a health insurance license , he must inform the patient about it.
Private patients usually pay the treatment costs themselves and receive private liquidation after treatment . You have a right to reimbursement against your private health insurance or, as a civil servant, against the aid agency.
For doctors and dentists, the amount of the remuneration is binding in accordance with the official fee schedule for doctors (GOÄ) or the official fee schedule for dentists (GOZ). Agreements on a different amount of remuneration must be made in accordance with the provisions of these fee regulations. Services not included in the fee schedule are charged as analog services in accordance with Section 6 (1) GOZ or Section 6 (1) GOÄ.
If the amount of the remuneration is not expressly agreed, then it is determined, if available, according to the profession-specific fee schedule , otherwise the usual remuneration is to be paid ( § 630b , § 612 Paragraph 2 BGB).
Unless otherwise agreed, the remuneration is due after the treatment has been performed ( Section 614 BGB); in the case of medical and dental services, however, as a rule, only when the payer has received an invoice corresponding to the relevant fee schedule ( Section 12 Para. 1 Schedule of Fees for Doctors (GOÄ) or § 10 Paragraph 1 Schedule of Fees for Dentists (GOZ)).
Further obligations
Cooperation of the contracting parties
According to Section 630c of the German Civil Code (BGB), patients and treating persons must mutually work together to carry out the treatment within the framework of the treatment contract.
The patients have to disclose in a timely manner the circumstances from their sphere that are significant for the treatment and in this way give the treating person a picture of themselves and their physical condition. You have to follow the medical instructions in terms of adherence to therapy ( compliance or adherence ) and, if necessary, participate in the treatment.
If a patient violates these obligations, he can be responsible for contributory negligence in the event of damage according to § 254 BGB .
Information obligations of the treating person
The treating person must inform the patient about certain facts. The information requirements do not exist if the treatment cannot be postponed (e.g. in the event of an accident) or if the patient expressly and clearly and unmistakably waives the information, Section 630c (4) BGB, or if there are important therapeutic reasons against it, for example if the patient could endanger his life or health as a result of the information.
Information about the essential circumstances for the treatment
Pursuant to Section 630c, Paragraph 2, Clause 1 of the German Civil Code (BGB) , the treating person has to explain to the patient in a manner that is understandable to him all of the circumstances that are important for the treatment before it begins. This applies in particular to the diagnosis, the expected health development, the therapy and the measures to be taken before and after the therapy. It should be explained to the patient how he should behave in accordance with the therapy. He must be advised of any intolerance risks, a possibly unsafe effect of the procedure or a change in lifestyle that is advisable by a doctor. The information is intended to enable the patient to behave in a health-promoting manner (for example, physical rest after an operation) and also warn him of the consequences of unhealthy behavior. This includes, for example, the warning not to drive or use machines after administration of medication that reduces reaction time and concentration (e.g. narcosis or local anesthesia ).
In terms of content, the information obligations specified in Section 630c, Paragraph 2, Clause 1 of the German Civil Code (BGB) are identical to the principles developed by case law and referred to as “therapeutic information” or “safety information”.
The information obligations are to be distinguished from the information obligations of § 630e BGB, which relate to the specific treatment , which concern the intervention and risk information , also called self-determination information .
The breach of the duty to provide information is a treatment error that can lead to the treating party being liable for damages. However, the burden of proof falls on the patient if it is not a matter of gross malpractice. Inadequate fulfillment of the duty to provide information does not affect the effectiveness of the consent (but this is not the case if the duty to provide information is violated prior to specific measures, see below).
Information about medical malpractice
In order to avert dangers that may result from a malpractice , or if the patient expressly requests it, the treating person must inform the patient about any recognizable malpractice. However, this “admission” associated with the patient information may not be used for evidence purposes in criminal or fine proceedings against the treating person or his relatives because of the nemo tenetur principle without the treating person's consent. This restriction does not apply to the use in asserting claims for damages against the treating party under civil law.
If the information is not required to avert further health risks, the treating person does not have to reveal any treatment errors without being asked.
Information about the financial consequences of the treatment
The treating person must inform the patient in text form about possible treatment costs and their likely amount if he knows that the treatment costs will not be covered or reimbursed in full by a third party, usually the health insurer. The same applies if there are sufficient indications from the circumstances that it is not ensured that the treatment costs will be fully covered by a third party. The treating person is not obliged to inform the patient about unfamiliar tariff content, for example a private health insurance company, or to advise him economically or legally.
In the event of a breach of the duty to provide information, the patient can reject the claim for costs due to a conflicting claim for damages if he would not have made use of the service provided the information was correct.
Obtaining consent
According to Section 630d of the German Civil Code ( BGB), the treating person must explicitly and unequivocally ask the patient whether he or she is performing a medical measure, especially in the case of an intervention in the patient's body or health, but also in the case of other therapeutic or diagnostic measures as part of the treatment consents to the measure . With treatment without the consent obtained, the treating person violates his or her obligation under the treatment contract. In addition, any act that may injure the body ( bodily harm ) in connection with the treatment is not justified .
Obtaining consent must be preceded by an understandable, proper explanation of the patient so that the patient is able to make an independent and self-determined decision. Consent is only effective after clarification.
The patient can withdraw his consent at any time.
If the patient is in the current situation is not capable, even in the treatment consent , the consent must satisfy two conditions custodial parents, a guardian , supplement nurse , supervisor or attorney seek with the task group of health care, unless an advance directive allows the measure or prohibited.
A living will , the consent to a medical measure contains, is effective only with prior medical education or avowed Enlightenment waiver. If an advance directive does not contain an expressly declared waiver of medical information, the advance directive in these cases is only to be regarded as an indication of the presumed will. A decision by the supervisor or the authorized representative about the permissibility of the medical intervention is then always required. In the event of a disagreement about the interpretation of the patient's will by the caregiver or authorized representative on the one hand and the doctor on the other hand, the care court must decide ( Section 1904, Paragraph 4 of the German Civil Code).
If consent for a measure that cannot be postponed cannot be obtained in good time, it may be carried out without consent if it corresponds to the presumed will of the patient.
Duty of the treating person to inform
According to Section 630e of the German Civil Code (BGB), the treating person is obliged to inform the patient about all circumstances essential to the consent, in particular about the type, scope, implementation, expected consequences and specific risks of the measure, the necessity, urgency and suitability of the measure for diagnosis or therapy and about the chances of success of the measure with regard to diagnosis or therapy (so-called intervention and risk information or self-determination information ).
If several medically equally indicated and common methods lead to significantly different burdens, risks or chances of recovery, information must also be given about existing alternatives to the measure. An alternative would sometimes be to forego treatment.
The purpose of the information is to make it clear to the patient the severity and scope of a possible intervention, so that he has a sufficient basis for decision-making to decide whether to consent to a medical measure.
The Enlightenment
- must be given orally so that the patient has the opportunity to ask the treating person questions,
- must take place in good time before the start of the intended measure so that the patient has time to weigh up the reasons for and against the measure, and
- must be understandable for the respective patient.
For the same reasons, clarification is exceptionally unnecessary as for the fulfillment of information obligations.
If the patient is unable to give consent and another person is entitled to give consent in his or her place, this person must be informed. Nevertheless, the essential circumstances are to be explained to the patient in accordance with his understanding, provided that he is able to take in the explanation based on his level of development and his ability to understand, and provided this is not contrary to his well-being.
Management and access to patient files
According to § 630f BGB, the treating person has to document the treatment in a patient file. Section 630g BGB grants the patient the right to inspect these files, unless there are substantial therapeutic reasons or substantial third-party rights that prevent inspection.
In the event of a violation of the documentation obligation , according to Section 630h (3) BGB assumes that the treating person did not take the measure in question.
As a rule, patient files are to be kept for a period of ten years after the end of the treatment or the end of the practice, records of X-ray treatments are to be kept for 30 years after the last treatment (Section 28 (2) sentence 1 RöV , Section 85 StrlSchV ).
Burden of proof for liability for treatment and clarification errors
The burden of proof in the case of liability for treatment and clarification errors is regulated by Section 630h BGB.
Contractual components
If a treatment also contains technical components, for example the production of dental prostheses , the warranty rights of the contract for work may apply to these components . The other activities required in the manufacture of dentures are, however, typical dental activities on the basis of medical-scientific knowledge that can be assigned to service contract law, so that there are no warranty claims in this respect.
Termination of the treatment contract
A termination of the treatment contract is possible through the termination regulations of § § 626 ff. BGB. A treatment contract is usually concluded orally (or implicitly , ie through so-called "conclusive action") and can also be terminated verbally (or implicitly). In this case, coherent action is understood to mean that the patient is undergoing treatment, i.e. there is behavior from which the willingness of the patient to undergo treatment clearly results for the doctor. The will of the person explaining is not immediately expressed in conclusive action. In the event of termination, this is usually done by the patient by not making use of further (dental) medical services. In the case of an immediate (immediate) termination, the decisive factor is whether there is an important reason.
Termination of private treatment
Cancellation by a privately insured patient or in the case of private (dental) medical services for those with statutory insurance can be made at any time without good cause in accordance with Section 627 (1) BGB.
Termination of contract medical treatment
The patient with statutory health insurance should only change the doctor or dentist participating in the contractual (dental) medical care in accordance with Section 626 of the German Civil Code in conjunction with Section 76, Paragraph 3, Clause 1 of SGB V within a calendar quarter only if there is an important reason.
Family doctor-centered care
Participants in family doctor-centered care undertake in writing to their health insurance company. The insured can revoke the declaration of participation in accordance with Section 73b, Paragraph 3, Clause 3 of SGB V within two weeks of submitting it in writing or for writing to the health insurance company without giving reasons.
Termination by doctor / dentist
If the doctor, dentist or other treating person wants to terminate the contract, he must observe the termination regulation of § 627 BGB. According to this, the doctor may only terminate in such a way that the patient can obtain the services (treatment) elsewhere, unless there is an important reason for the immediate termination. If he terminates at the wrong time without such a reason, he has to compensate the patient for the resulting damage. Termination is therefore not permitted if the patient needs urgent medical help and is dependent on the attending physician, discontinuing treatment would be harmful for the patient or if he does not fulfill the treatment obligation resulting from the security order . The doctor / dentist may not arbitrarily refuse a treatment, for example he may not make a treatment dependent on a non-contractual service (or for doctors: IGEL service ). In addition, there is a risk for dentists, for example, that in the event of termination, they forfeit their right to rework a possibly defective prosthetic. Examples of permitted terminations:
- Disagreement regarding medication (AG Karlsruhe, judgment of March 25, 1998 - 9 C 251/97),
- Insults, threats and insults (OLG Munich, decision of September 25, 2007 - 1 U 3395/07),
- constant nocturnal disturbances, annoyance,
- Discrepancies in making appointments or keeping appointments (AG Karlsruhe, judgment of March 25, 1998 - 9 C 251/97),
- Legal dispute between the patient and the doctor, e.g. B. as part of a doctor's liability process.
Entitlement to remuneration upon termination
The Federal Court of Justice has confirmed that a doctor or dentist is only entitled to remuneration if the service provided has become useless for the patient. In addition, the doctor or dentist must have acted culpably in breach of contract. It is not necessary for this that there is serious misconduct or an important reason. However, a minor breach of contract is not enough.
Individual evidence
- ↑ Inserted by the Law for the Improvement of Patients' Rights ( Patient Rights Act ) (PatRG) of February 20, 2013 ( Federal Law Gazette I p. 277 ) with effect from February 26, 2013.
- ↑ Palandt , preliminary remark to § 630a margin no. 4 ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition 2014. Accessed on June 20, 2016.
- ↑ Palandt, Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition. 2014, preliminary remark to § 630a marginal no. 3 ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. .
- ↑ Jauernig, Bürgerliches Gesetzbuch- Mansel , 15th edition 2014, § 630a Rn. 2
- ↑ Palandt , Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition. 2014, § 630a Rn. 6th
- ↑ Katzenmeier: The Treatment Contract - New Contract Type in the BGB , NJW 2013, 817 (818)
- ↑ Jauernig, Bürgerliches Gesetzbuch- Mansel , 15th edition 2014, § 630a Rn. 5
- ↑ a b c d e f The medical treatment obligation , DAS Accessed on June 21, 2016.
- ^ Higher Regional Court Hamm, judgment of April 26, 2016, Az .: 26 U 116/14
- ↑ Palandt, Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition. 2014, § 630a Rn. 8th
- ↑ Palandt, Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition 2014, § 630c Rn. 13
- ↑ BT-Drs. 17/10488, p. 21
- ↑ Draft law of the federal government of August 15, 2012, Bundestag printed matter 17/10488 p. 21 (PDF; 1.1 MB)
- ↑ Palandt, Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition 2014, § 630c Rn. 6th
- ↑ Palandt, Bürgerliches Gesetzbuch- Weidenkaff , 73rd edition 2014, § 630c Rn. 12
- ↑ Bundestag printed matter 17/10488, p. 23
- ↑ Irina Neuleben: Documentation requirements and retention periods of the North Rhine Association of Statutory Health Insurance Physicians , accessed on June 21, 2020.
- ^ BGH, judgment of December 9, 1974, Az .: VII ZR 182/73
- ↑ NJW 1975, p. 305
- ↑ OLG Munich, judgment of February 6, 1997, Az .: 1 U 4802/95
- ↑ BSGE 25, 116, 118
- ↑ Az .: VI ZR 133/10 , BGH judgment of March 29, 2011. Retrieved on June 20, 2016.
literature
- Christian Katzenmeier: The Treatment Contract - New Contract Type in the BGB , NJW 12/2013, page 817
- Olzen / Lilius-Karakaya: Patient Rights Act and Legal Support; BtPrax 2013, page 127
- Martin Rehborn: The patient rights law ; Health Law 2013, page 257
- Dominik Kellner: The new patient rights law , journal for the entire medical and health law ZMGR (2013), pp. 228-237, German lawyer publisher ISSN 1612-734X
