For years there has been a public debate in Germany about corruption in the healthcare sector – not least because of the huge economical detriments. Experts estimate that corruption in the health care system causes damages of up to EUR 18 billion, which corresponds to ten percent of the entire healthcare expenditure.
Of particular interest has been the question, whether medical professionals may be liable for criminal sanctions if they accept money or other material benefits from the pharmaceutical industry in exchange for prescribing the “right” drugs and using the “right” materials – a practice apparently commonplace.
In 2012 the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled that German criminal law is currently not applicable to cases in which resident medical professionals accept money from the pharmaceutical industry. The case under dispute concerned a pharmaceutical sales representative, who had paid resident doctors up to EUR 18,000.00 to prescribe certain drugs of her employer. The payments were disguised as royalties for fictitious lectures which actually never took place. The BGH overruled the judgement of the Regional Court that found the pictured practice punishable and convicted a doctor for corruptibility.
The federal judges ruled that panel doctors, who receive benefits from a pharmaceutical company in exchange for the prescription of drugs of this company, are not liable for criminal sanctions of corruption pursuant to Section 332 of the German Criminal Code. Also a criminal offense of bribery in business transactions pursuant to Section 299 paragraph 1 of the German Criminal Code was ruled out. In its reasoning the court stated that the established physician neither acts as a public official within the meaning of Section 11 paragraph 1 No. 2 of the German Criminal Code nor as legal appointee of public health insurance companies – a prerequisite of punishment for corruption.
Accordingly, employees of pharmaceutical companies giving money to physicians cannot be charged with bribery (Section 334 German Criminal Code) or commercial bribery (Section 299 paragraph 2 German Criminal Code).
The decision was widely met by a heated debate and public demands for stricter legislation. Many understood the court’s ruling as a request to the German legislator to act – in particular since many saw the judicial decision as a carte blanche for resident medical professionals and pharmaceutical industry to make further money at the expense of public healthcare system.
Now – almost a year after the controversial BGH ruling – legislative action may be about to be taken. The German Government has now confirmed that new legislation regarding the matter shall be implemented soon.
