BSG: industrial action has no place in contract medical care
Doctors have no right to strike. November 2016, the Federal Social Court (BSG) in Kassel affirmed (Az: B 6 KA 38/15 R). It dismissed a lawsuit from Werner Baumgärtner, head of the Baden-Württemberg medical association Medi. He could not rely on the freedom of association enshrined in the Basic Law. Baumgärtner now wants to file a constitutional complaint.
Baumgärtner is a general practitioner in Stuttgart. On October 8 and November 21, 2012, he had closed his practice and expressly stated that he wanted to exercise his constitutional right to strike. For fear of losing their medical license, other doctors were unwilling to make such an announcement. On these days there were smaller rallies with other doctors in Stuttgart.
The Association of Statutory Health Insurance Physicians of Baden-Württemberg considered Baumgärtner's "strike" to be inadmissible and gave him a reprimand.
The doctor complained against this, relying on the right to strike enshrined in the Basic Law and also in the European Convention on Human Rights. This applies without restrictions, not only to employees, said Baumgartner's lawyer Joachim Steck.
In addition, at least doctors in "care practices" with a high proportion of those insured by law are dependent on their status as contract doctors. Due to the numerous strict requirements, they are then extremely limited in their freedom of choice and, like employees, are subject to a whole catalog of duties. Without the right to strike, there was no way to ward off bureaucracy and enforce higher fees.
According to the lawyer, depending on the strike goal, a medical strike could be directed against the Association of Statutory Health Insurance Physicians or against health insurers. Representatives of the accused Baden-Württemberg Association of Statutory Health Insurance Physicians said that strikes could be an "act of support" in negotiations with health insurers.
The BSG now dismissed Baumgartner's complaint. The right to strike was created for employees. To what extent strikes are therefore generally excluded for freelancers, the Kassel judges left open. "In any case, contract doctors have no right to strike," said the presiding judge Ulrich Wenner. During their office hours, contract doctors should also be available to their patients, and Baumgärtner culpably violated this "duty to attend".
"The legislature has balanced the partially conflicting interests of health insurers and doctors by structuring the law on contract doctors, in order to ensure reliable care for the insured on reasonable terms," emphasized the BSG contract doctorate. The joint self-administration of doctors and health insurers provides for a negotiated solution and, if necessary, instead of strikes, arbitration that can be checked by the court.
The contracted physicians were involved in the mandate of the medical associations for medical care. "A doctor can only accept this package as a whole or not," Wenner said.
However, he emphasized that doctors are neither obliged to abstain from politics nor from fees. Demonstrations are therefore allowed. However, the BSG left open how a practice closure for participation in such a rally should be assessed. Baumgärtner had expressly announced a strike. He now wants to appeal to the Federal Constitutional Court.
Because of the ban on strikes, numerous dentists in Lower Saxony had returned their approval in 2004. For this purpose, the BSG had decided that these dentists would not be entitled to a fee against the health insurance companies if they treat insured patients despite the return of the admission (judgment of June 27, 2007, file number: B 6 KA 37/06 R). The law explicitly provides for severe sanctions. mwo / fle