Self-employed physicians in Germany accepting up to €10 000 from drug companies in cash, or gifts such as computers, equipment, or holidays, will not face corruption charges.
The Federal Court of Justice
, in Karlsruhe, Germany
‘s Supreme Court, ruled that drug companies cannot be penalised under current legislation, even when paying German freelance physicians to prescribe their drugs. Similarly these doctors can now officially accept this money
without either party facing criminal charges of bribery. The ruling could apply to around 124 000 of 342 000 doctors working in the country, which includes around 121 700 independent physicians working under freelance contracts in Germany’s national health system.
The most recent case in question involved a sales representative
of a major German drug firm who, via its benefits programmme, paid cash to a group of national health service
doctors. Here each doctor received a 5% commission on each product they prescribed. Though the firm officially said the money was remuneration for delivering academic presentations, these seminars never took place. The sales agent was then charged with commercial bribery by a lower court, and fined.
When the sales representative appealed, the case was referred to the Federal Court of Justice. Here the Grand Criminal Panel reversed the lower court’s ruling and acquitted the accused. It then also ruled that the physicians were neither civil servants, nor representatives of a state institution, and so could not be charged with “bribery of public officials”, as defined in paragraph 332 of the German Penal Code, or under criminal law. The court further decided that the physicians were also neither employees nor representatives of a business operation, and so could not be charged with commercial bribery under paragraph 299.
The court’s decision has been welcomed by a wide range of leading German health
organisations. Though declining to comment directly, in a written press statement Birgit Fischer
, managing director of the Association of Research-based Pharmaceutical Companies
, said the decision meant doctors “…can now continue to see themselves as members of a free profession and are not just categorised as the extended arm of the statutory health insurance funds”.
Speaking to The Lancet
, head of the German Medical Association
, Frank Ulrich Montgomery, shared the view, saying the court ruling protects the rights of doctors to operate in an independent professional capacity. “Such physicians are not public servants or employed by anyone, so they should be free to perform freelance work for clients in the same way that an architect or lawyer can.”
“Self-employed entrepreneurs are not an organ of health insurance funds and this is a good thing. If they were either civil servants or had been commissioned by the health fund then they would be working for the health fund and so would be subordinate to it. This means they would have to consider the economic interest of this insurance fund before the needs of the patient. A freelancer is free of this economic agenda.”
Much of the German press, however, has reported the recent court verdict in terms of it now officially giving drug companies and doctors the legal right to bribe and be bribed, respectively. Coverage has included headlines such as “Bribery of doctors is completely legal” from the television news channel n-tv. According to Montgomery, the media coverage of the case is part of wider behind-the-scenes agenda to tarnish the reputation of doctors. “We now have a campaign orchestrated by the health insurance funds to make doctors out to be completely corrupt…The Supreme Court did indeed rule that the doctor had not broken criminal law, but that definitely does not give doctors now the right to be bribed by the pharmaceutical industry. Doing this breaches the professional code of the German Medical
For Ann Marini, spokesperson for the Central Association of Health Insurance Funds, it is not enough for a professional code of conduct to be left to apply the penalties which the legal system is not able to. She said that the Supreme Court has not taken a clear stance on the real issue. “It cannot be that behaviour for one type of doctor is considered by the German Penal Code, to be a crime of bribery, and yet the very same behaviour from a freelance physician is perfectly legal. We would have wished that the court had openly and clearly said that all doctors, of all sorts, can be prosecuted for corruption.”