Criminal defense lawyers for allegations of corruption in the healthcare sector – defense in bribery and corruption cases

Overview – Corruption in the healthcare sector as part of medical criminal law

Sections 299a and 299b StGB follow the structure of classic corruption offences. In principle, any person can offer or grant an advantage (section 299b StGB). On the recipient side, however, the group of potential offenders is limited to members of certain healthcare professions (section 299a StGB), namely those professions for which state-regulated training is required to practise the profession or use the professional title.

This specifically includes:

• doctors
• dentists
• psychotherapists
• pharmacists
• other members of state-regulated healthcare professions

The purpose of these provisions is to protect fair competition in the healthcare sector and to safeguard patients’ trust in the integrity of medical decisions. The legislature intends to prevent economic incentives from improperly influencing medical decision-making. Medical necessity should be the decisive factor – not economic gain. This standard is closely linked to the professional ban on fee-based referrals, to social security billing rules, and to principles of competition law.

When does an offence under sections 299a and 299b StGB occur?

Bribery in the healthcare sector (section 299a StGB) is committed by anyone who, as a member of a covered healthcare profession and in connection with the practice of that profession, demands, agrees to receive or accepts an advantage for themselves or a third party in return for unfair preferential treatment in competition in certain health-related processes specified by law. Conversely, section 299b StGB criminalises the active side, i.e. offering, promising or granting such an advantage under the same conditions.

An advantage is any improvement in the economic, legal or personal position of the recipient to which there is no legal entitlement, whether material or immaterial. Typical examples include:

• cash payments, luxury goods and other gifts
• fees for product recommendations
• discounts and special conditions
• payment of costs for training events and corporate hospitality
• entering into contracts, e.g. cooperation agreements
• enhancing scientific reputation
• conferring awards or distinctions

The central concept is the unlawful agreement. The advantage must be granted in consideration for unfair preferential treatment in competition. The law expressly lists the following contexts in which such preferential treatment can occur:

• prescribing medicines, remedies, aids or medical devices
• purchasing such products for immediate use
• supplying patients or examination material

An explicit written agreement is not necessary – the unlawful agreement can also be inferred from the circumstances of the individual case.

A competitive situation between at least two providers is required. The preferential treatment must be based on extraneous considerations. Where there is a legitimate objective reason for a decision, this is a strong indication that the preferential treatment is not unfair. Conduct that is permissible under professional and social law – for example under the German Social Code (SGB V), the Medicines Act (AMG), the Model Professional Codes for Physicians and Dentists (MBO-Ä/MBO-Z) or the Act on Advertising in the Field of Healthcare (Heilmittelwerbegesetz – HWG) – is generally not punishable. However, violations of such rules can indicate unfair preferential treatment.

The offence requires intent. The accused must be aware that the benefit is granted in return for unfair preferential treatment.

Typical accompanying offences to sections 299a and 299b StGB

Proceedings for corruption in the healthcare sector are often not limited to allegations under sections 299a and 299b StGB. Typical accompanying offences include:

• billing fraud (section 263 StGB)
• breach of trust by contracted physicians (section 266 StGB)
• tax evasion (section 370 AO)
• violations of the Act on Advertising in the Field of Healthcare (HWG), the Act Against Unfair Competition (UWG) and antitrust law

Billing fraud

Investigations regularly concern the billing of medical services to statutory or private health insurers, particularly where services have not been provided in accordance with applicable billing regulations. Relevant provisions include SGB V, the Uniform Assessment Standard (EBM), the German Fee Schedule for Physicians (GOÄ) and rules governing contracted physicians. In the context of sections 299a and 299b StGB, billing fraud may arise, for example, where parties agree to provide medically unnecessary services at the expense of statutory health insurance. Medical documentation, billing logic and professional rules are closely interlinked in such proceedings.

Breach of trust

Allegations of breach of trust (section 266 StGB) may be brought against, for example, managing directors of medical care centres (MVZ), hospital managers or practice owners if they are accused of misusing company assets or causing financial harm to sponsoring entities. Contracted physicians also have asset management duties vis-à-vis health insurance funds, which can be violated by inappropriate prescribing behaviour.

Tax evasion

Payments that constitute a criminal offence may not be deducted as business expenses for tax purposes. Anyone making such payments can be prosecuted. Concealing gifts from the tax authorities will regularly amount to tax evasion. On the recipient side, gifts received may constitute taxable income, which is also a focus of investigations.

Advertising and antitrust law

Rules on advertising in the healthcare sector are relevant because, like sections 299a and 299b StGB, they target unfair practices in healthcare markets. Antitrust violations are usually administrative offences and typically arise where anti-competitive discounts are granted. Given the potentially high fines, they are highly relevant in practice.

Is accepting a gift a criminal offence?

Not every acceptance of a gift constitutes bribery in the healthcare sector. For criminal liability under section 299a StGB, the decisive factor is whether there is a link to unfair preferential treatment in competition. Payments made as a reward for past preferential treatment are only covered by sections 299a and 299b StGB if they are based on a prior unlawful agreement.

Small tokens of appreciation may, under certain circumstances, be considered socially acceptable. However, the threshold is narrow and must always be assessed on a case-by-case basis.

Employees of public-sector employers may additionally be liable for bribery or acceptance of advantages under sections 331 et seq. StGB if they accept gifts, even where sections 299a and 299b StGB do not apply.

In all cases, the relevant professional regulations must be taken into account, irrespective of criminal liability.

How is corruption in the healthcare sector uncovered?

Investigations into bribery and corruption in the healthcare sector may originate from:

• tax audits (external audits) conducted by the tax authorities
• criminal complaints
• whistleblower reports
• suspicious activity reports from medical associations and health insurance funds
• internal compliance audits

Typical investigative measures include searches of medical practices and business premises, seizure of patient and billing records, and review of cooperation agreements and correspondence. Given the extensive documentation requirements in healthcare, the evidence base is often voluminous.

It is common for investigating authorities to examine suspected billing fraud or tax offences in parallel. Proceedings can therefore broaden considerably.

Important: if you learn of a search or investigation, you should seek legal advice immediately – before making any statements to investigating authorities.

What are the penalties for bribery and corruption in the healthcare sector?

The basic offence under sections 299a and 299b StGB carries a fine or imprisonment of up to three years. In particularly serious cases (section 300 StGB) – for example in cases of commercial activity, substantial gains or commission by a criminal organisation – a prison sentence of three months to five years is possible.

In addition to the primary penalty, the following secondary consequences may arise:

• confiscation of proceeds of crime (sections 73 et seq. StGB)
• professional disqualification (section 70 StGB)
• disciplinary measures (e.g. by professional bodies or employers)
• withdrawal of health insurance accreditation for contracted physicians

These collateral consequences can have a more serious impact on professional existence than the sentence itself. Early legal representation is therefore crucial.

Does a conviction automatically lead to loss of medical licence?

A medical licence can be revoked, but revocation is not automatic. The competent authority assesses whether the individual is unworthy or unreliable to practise medicine. The decision must respect the freedom of occupation (Article 12 of the Basic Law) and the principle of proportionality.

Criminal proceedings and administrative licensing measures are formally separate, but they strongly influence each other. A criminal conviction can heavily influence the authority’s assessment. Conversely, a successful defence in the criminal proceedings can significantly affect the administrative decision. Criminal defence strategy therefore also aims to avert or mitigate professional consequences.

Defence against corruption charges in the healthcare sector – Galen Rechtsanwälte

The lawyers at Galen Rechtsanwälte advise and defend clients nationwide in white-collar and medical criminal law. Our focus is on an early, structured and discreet approach. We clarify the initial situation, request access to the case file and analyse the evidence and the prosecution’s investigative strategy.

Key defence issues typically include:

• whether a criminally relevant unlawful agreement can be proven
• whether the cooperation in question was permissible under professional and social law
• whether the required intent can be established in the specific case
• whether investigative measures are legally contestable
• how contractual, professional and tax-law risks interact with the criminal allegations

Especially in medical criminal law, the line between permissible cooperation and criminal interference with medical independence is often complex, as is the distinction between professional activities and purely commercial decisions. Galen Rechtsanwälte therefore considers professional, contractual and tax-related risks from the outset and, where necessary, works closely with specialised colleagues in other areas of law.

Are your premises being searched, or have you otherwise learned of an investigation against you? Please contact us to arrange an appointment.