(01/2021) by Dr. Christian Corell, Clinic of the City of Ludwigshafen am Rhein gGmbH
The corruption offenses of §§ 299a and 299b StGB criminalize many cases in which a member of a medical profession prefers economic interests to patient interests. However, corruption in healthcare has many faces. The following article is intended to provide an overview of typical issues in practice.
Corruption in healthcare has been on everyone's lips for many years. In particular, with the "Law to Combat Corruption in the Health Care System" of June 4, 2016, as a reaction to the negative judgment of the Federal Court of Justice (BGH) on the criminal liability of contract doctors for corruption offenses of March 29, 2012, it has led to numerous publications and edits. To the surprise of legal laypeople, however, employed or civil servant doctors and other dependent employees in the healthcare system are not left out. Rather, the sometimes even stricter Sections 331 et seq. Of the Criminal Code for corruption of public officials as well as the facts of Section 299 of the Criminal Code with the inspection options to the detriment of fair competition or the interests of the business owner are still relevant. As a special addition, the new §§ 299a and 299b StGB are added as penal norms for the health care system, whereby essentially particularly important professional and social law requirements and evaluations for the protection of a fair health competition and at least indirectly the patient's trust in independent medical professions from the SGB V, the MBO-Ä and the MBO-Z are criminally recorded.
Very strict codes
Experience has shown that healthcare workers affected as non-lawyers face much more specific case questions. Industry and association codes, guidelines and recommendations, from which much more detailed information and examples can be found, provide valuable help in this regard. However, these works are regularly significantly stricter than the (criminal) legal requirements; it is also about avoiding the pressure of criminal investigations, which is already difficult to bear. This contribution tries to give some answers by compiling subject groups, training case examples, practical experiences and a case collection evaluation, to raise awareness and to close knowledge gaps in order to illustrate the factual connection of unjust agreements as unfair preference in the health competition against benefit.
Socially adequate benefits
In practice, the so-called social adequacy is very important as a valuable indicator against an unlawful agreement. Socially adequate benefits are the granting of benefits to such a small extent within the framework of general rules of courtesy or custom that they are considered unsuitable for impairing competition.
Top corruption issues
Below you will find some top corruption topic groups that have turned out to be gateways, especially for corruption in the health care system, but also in business dealings or in the case of corruption by public officials and thus as reasons for criminal investigations. Case constellations that are as typical of practice as possible are assigned to the individual areas. Overlaps and borderline cases are inevitable, but harmless; Unfortunately, completeness is not possible.
Contract awarding and procurement of medical products
In the award of contracts and procurement decisions, every economically conspicuous imbalance in an agreement can trigger suspicions about hidden accompanying interests and thus investigative risks. Discounts or pharmaceuticals, aids or medical devices and other devices or products for practice or hospital needs as additions against preferential treatment in purchasing decisions about other procurement objects are recorded under corruption law if the decision maker is an official or an employee or agent of a business enterprise. Revenue sharing in drug or medical device manufacturers is also problematic within business relationships, because the delimitation is based on the actual perceptibility of the influence of procurement on individual revenue. Equity investments with a general profit distribution including pure sales expectations are therefore permitted.
Invitations, hospitality, factory visits
