Criminal Defense Attorneys specializing in Medical Criminal Law

Criminal Liability Risks for Doctors and other Healthcare Providers

Medical criminal law is situated at the intersection of medical practice, the healthcare industry, and law enforcement. Each case is shaped by considerations relating to medical, professional, and social security law. Accordingly, specialized criminal defence is indispensable.

When becoming the target of an investigation, doctors, therapists, pharmacists, and operators of care facilities and hospitals, as well as their staff, usually don’t just fear legal risks. Beyond that, their reputation and economic livelihood can be at stake. The same applies to companies in the care, pharmaceutical, and medical device sectors whose managers are subject to investigation.

Healthcare providers can face a wide range of allegations. In conventional medical criminal law, which primarily concerns physicians, the focus is on treatment errors – specifically, charges of negligent bodily harm or negligent homicide (sections 229 and 222 of the German Criminal Code / Strafgesetzbuch – StGB). However, providers may also face allegations relating to economic criminal law, such as billing fraud (section 263 StGB), corruption offenses under sections 299a and 299b StGB, or embezzlement (section 266 StGB). Furthermore, violations of the Medical Products Act (Arzneimittelgesetz – AMG) or the German Transplant Act (Transplantationsgesetz – TPG) may result in criminal charges.

At Galen Lawyers, we represent medical professionals and consult with companies in the healthcare sector across Germany. Our expertise covers both general and economic criminal law. We understand that criminal proceedings in the healthcare sector can have serious professional and reputational consequences. This comprehensive approach is integral to our defence strategy from the outset.

Please feel free to contact us to arrange an appointment.

Which Offences constitute Medical Criminal Law? Common Allegations against Doctors and other Healthcare Providers

Liability under Section 223 StGB – Intentional Bodily Harm

According to prevailing jurisprudence, virtually any medical intervention constitutes bodily harm under section 223 StGB as it infringes upon the patient’s physical integrity. The intervention is exempt from punishment if the procedure was conducted with the patient’s effective consent and is therefore justified (section 228 StGB). Despite that consent the act is still deemed unlawful if it offends common decency. This is especially relevant in the case of interventions that are not medically indicated, e.g. cosmetic surgery, organ donation, or risky and unrecognized treatment methods.

Consent is only valid if the physician has properly informed the patient beforehand about the nature, chances, risks, side effects, alternatives and expected course of the treatment, as well as the treatment methods. The scope and depth of this information will depend on the specific circumstances. Furthermore, the patient must be capable of understanding the provided information and making an informed decision.

If explicit consent from the patient cannot be obtained, for example in an emergency situation, the medical intervention may be justified by “implied” consent. Assessing the patient’s personal circumstances and interests is crucial to determine if consent is implied.

Failure to adequately question and inform the patient leads to criminal liability, unless the patient would have still consented to the treatment had they been properly informed (“hypothetical consent”).

Liability for Medical Malpractice – Negligent Bodily Harm (section 229 StGB) and Negligent Homicide (section 222 StGB)

A physician who violates the recognized rules of medical practice, i.e., who does not treat patients according to accepted medical standards, can be held criminally liable for negligent bodily harm (section 229 StGB), provided intentional conduct is ruled out. If the error leads to death, negligent homicide (section 222 StGB) may apply. Key factors include whether there was an objective breach of duty of care and whether this breach was the cause of the resulting harm.

It is important to note that patient consent does not, in and of itself, absolve medical professionals of criminal liability for malpractice. The reason for this is that a patient’s consent usually refers to treatment performed according to accepted medical standards (lege artis). The same applies to presumed consent.

Medical errors can occur at different stages: during the examination or when taking the medical history, during the diagnosis, during the procedure itself, or at an organizational level, e.g. inadequate staffing.

Billing Fraud (Section 263 StGB) in the Healthcare Sector

Billing fraud is one of the most common allegations in medical criminal law.

“Billing fraud” is not specifically regulated. Rather, the general elements of fraud as defined in section 263 StGB apply. Thereunder, a person is criminally liable if they intentionally and with the intent to obtain an unlawful benefit deceive healthcare providers, causing a disposition of assets that results in financial loss.

Typical scenarios include:

• Services are not provided,
• Services are provided incorrectly – e.g. billing for more than what was provided (so-called “upcoding”),
• Violations of the obligation of physicians to provide services personally,
• Status issues – e.g., when a doctor bills for services as a self-employed contracted physician, even though he is only an employee,
• Incorrectly coded or non-billable services,
• Care services provided without the required qualifications,
• Violations of prohibitions on cooperation (e.g., section 128 SGB V)

Bribery and Corruption in the Healthcare Sector (Sections 299a, 299b StGB)

Since 2016, the German Criminal Code contains separate offenses to address corruption in the healthcare sector: § 299a StGB (taking bribes in the healthcare sector) and § 299b StGB (giving bribes in the healthcare sector).

Section 299a StGB applies, when a member of certain specified healthcare professions demands, solicits, or accepts a benefit for themselves or a third party in connection with the practice of that profession, in return for unfair preferential treatment in certain processes such as the prescription of medication, remedies, health aids or medical devices.

Conversely, section 299b of the German Criminal Code punishes the active bribery of members of healthcare professions, i.e., offering, promising, or granting a benefit under the aforementioned conditions.

Any improvement in one’s economic, legal, or personal situation to which there is no legal entitlement – whether material or immaterial – can constitute a such a benefit, e.g. monetary gifts or covering costs for further training.

How does an Investigation proceed in Medical Criminal Law?

Investigations in medical criminal law are commonly triggered by

• tips or reports from current or former employees,
• inspections by the Medical Service (Medizinischer Dienst – MD) of the health insurance funds,
• reports from the Associations of Statutory Health Insurance Physicians (Kassenärztliche Vereinigungen) or individual health insurance funds,
• external audits by the tax authorities,
• or internal compliance audits.

The public prosecutor’s office is conducting the investigation. Typical measures include searches of medical practices, clinics and offices, securing digital billing data and patient data, questioning employees and obtaining expert medical opinions.

What Penalties and Professional Consequences can arise under Medical Criminal Law?

The penalty depends on the specific offense:

• Intentional bodily harm (section 223 StGB): imprisonment for up to five years or a fine; dangerous bodily harm (section 224 StGB): imprisonment from six months up to ten years; bodily harm resulting in death (section 227 StGB): imprisonment from three years up to 15 years.
• Negligent bodily harm (section 229 StGB): Imprisonment for up to three years or a fine.
• Negligent homicide (section 222 StGB): Imprisonment for up to five years or a fine.
• Fraud (section 263 StGB): Imprisonment for up to five years or a fine; in particularly serious cases: imprisonment from six months to ten years.
• Bribery and corruption in commercial transactions (sections 299a, 299b StGB): Imprisonment for up to three years or a fine; in particularly serious cases: imprisonment from three months to five years.

In addition to the actual punishment, other consequences can be of considerable importance: Entries in the criminal record (in German: “Bundeszentralregister”), professional bans under section 70 StGB, confiscation of assets under sections 73 et seq. StGB, and disciplinary measures up to the revocation of professional licenses are possible. Managing directors and board members may also face personal liability risks and the loss of their positions.

Hospitals and companies may also face fines under the Act on Regulatory Offences (Gesetz über Ordnungswidrigkeiten – OWiG), as well as civil claims for damages. Additionally, criminal investigations can cause reputational damage that, even if no conviction results, should not be underestimated.

Criminal Defence in Medical Criminal Law

Criminal investigations in medical law require an early and strategically focused defence. The lawyers at Galen Lawyers practice both general criminal law and economic criminal law, representing medical professionals nationwide and consulting to companies in the healthcare sector.

Our support begins with conducting a thorough review of the case file and analysing the medical and economic background of the alleged offense to determine whether the elements of the respective criminal offense are met. Depending on the specific circumstances, we examine, for example, whether there has been a demonstrable breach of duty of care, whether valid consent was obtained, or whether there has been any deception regarding billing-relevant facts. We also review, if necessary, the calculation of damages and potential claims for confiscation. Simultaneously, we keep a close eye on professional disciplinary risks and, if required, will represent you in any professional disciplinary proceedings.

As a law firm specializing in medical and economic criminal law, we combine forensic experience with an in-depth understanding of the economic and organizational structures of the healthcare sector.

Please feel free to contact us to arrange an appointment.