The criminal law for medical professions includes in particular allegations relating to medical malpractice (negligent bodily harm and negligent homicide), but also allegations of fraud, breach of trust and corruption in dealing with the calculation and payment of medical services.
We advise and defend doctors, therapists, pharmacists, hospitals, nursing facilities, and manufacturers of pharmaceuticals and medical devices in all criminal and professional law matters.
Criminal law risks in the healthcare sector for doctors and other healthcare providers
Medical criminal law lies at the intersection of medical practice, the healthcare industry, and law enforcement. Medical, professional, and social security law specifics shape each case – making specialized criminal defense indispensable.
For doctors, therapists, pharmacists, and operators and staff of care facilities and hospitals, investigations regularly involve more than just a potential penalty: their professional and economic livelihood and reputation can be at stake. This also applies to companies in the care, pharmaceutical, and medical device sectors when their managers become the target of investigative authorities.
The allegations are diverse. In traditional medical criminal law, which primarily concerns physicians, the focus is on treatment errors – specifically, charges of negligent bodily harm (§ 229 of the German Criminal Code) or negligent homicide (§ 222 of the German Criminal Code). However, allegations of white-collar crime can also come under investigation: in particular, billing fraud (§ 263 of the German Criminal Code), corruption offenses under §§ 299a and 299b of the German Criminal Code, or breach of trust (§ 266 of the German Criminal Code). Furthermore, violations of the German Medicines Act (AMG) or the German Transplantation Act (TPG) can also lead to criminal charges.
At Galen Attorneys at Law, we defend medical professionals nationwide and advise companies in the healthcare sector – with experience in both general criminal law and white-collar crime. We understand that criminal proceedings in the healthcare sector can always have professional and reputational consequences. This comprehensive perspective is an integral part of our defense strategy from the outset.
Please contact us to arrange an appointment.
When do criminal offenses occur under medical criminal law? Typical accusations against physicians and other healthcare providers.
Criminal liability for intentional bodily harm (§ 223 StGB)
According to established case law, every medical intervention generally constitutes the offense of bodily harm under Section 223 of the German Criminal Code (StGB), as it represents an infringement of physical integrity. The intervention is only exempt from punishment if the patient has given valid consent. Consent is a recognized justification. Particularly in the case of interventions not medically indicated (e.g., cosmetic surgery, organ donation, risky, not yet recognized treatment methods), the limits set forth in Section 228 of the German Criminal Code (StGB) must be observed; that is, the consent must not violate "public policy.".
For consent to be valid, the physician must have properly informed the patient beforehand – about the nature, chances, risks, side effects, alternatives, and the expected course of the treatment, as well as the treatment methods. The scope and depth of the information depend on the specific circumstances. Furthermore, the patient must be capable of understanding and making informed decisions when giving consent.
If explicit consent from the patient cannot be obtained – for example, in emergency situations – the medical intervention may be justified by "presumed" consent. The patient's personal circumstances and interests are decisive in this regard.
If a patient is not questioned or properly informed, criminal liability may be waived based on so-called hypothetical consent. This concerns the question of whether the patient would have consented to the treatment if they had been properly informed.
Negligent bodily harm (§ 229 StGB) or negligent homicide (§ 222 StGB) in cases of medical malpractice
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 (§ 229 of the German Criminal Code), provided intentional conduct is ruled out. If the error leads to death, negligent homicide (§ 222 of the German Criminal Code) may be considered. Key factors include whether there was an objective breach of duty of care and whether this breach was the cause of the resulting harm.
Important: Patient consent does not, in principle, eliminate criminal liability for medical malpractice. This is because patient consent generally refers to treatment performed according to accepted medical standards (lege artis). This also applies to presumed consent.
Medical errors can occur at different levels: during the examination or medical history, during the diagnosis, during the execution of the procedure itself, or at an organizational level – for example, through the use of insufficiently qualified personnel in on-call duty.
Billing fraud (§ 263 StGB) in the healthcare sector
Billing fraud Billing fraud is one of the most frequent areas of investigation in medical criminal law. There is no separate offense of "billing fraud"; the general elements of fraud under Section 263 of the German Criminal Code (StGB) apply. A person is liable to prosecution if they intentionally and with the intent to enrich themselves or a third party, by deceiving health insurance providers about facts relevant to billing, thereby causing a disposition of assets that results in financial loss.
Typical scenarios include:
- Services not provided or provided incorrectly – such as so-called „air services“ or cases of upcoding.
- Violations of the obligation 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 assessed or non-billable services
- Care services not provided or provided without the required qualifications
- Violations of prohibitions on cooperation (e.g., inadmissible cooperation according to § 128 SGB V)
Corruption in the healthcare sector (§§ 299a, 299b of the German Criminal Code) – Bribery and corruption
Since 2016, the German Criminal Code has contained separate offenses under § 299a StGB (Bribery in the Healthcare Sector) and § 299b StGB (Bribery in the Healthcare Sector). Corruption in the healthcare system.
Bribery (§ 299a of the German Criminal Code) in the healthcare sector is a criminal offense committed by anyone who, as a member of certain healthcare professions and in connection with the practice of that profession, demands, solicits, or accepts an advantage for themselves or a third party – in return for unfair preferential treatment in competition in certain processes specified by law within the healthcare sector. Conversely, § 299b of the German Criminal Code covers the active bribery of members of healthcare professions, i.e., offering, promising, or granting an advantage under the aforementioned conditions.
For the purposes of these standards, a benefit is any improvement in one's economic, legal, or personal situation to which there is no legal entitlement – whether material or immaterial. Benefits can include, for example, monetary gifts or the assumption of costs for further training.
How does an investigation proceed in medical criminal law? – Searches, expert opinions, and data analysis
Investigations in medical criminal law rarely begin by chance. Common triggers include:
- Tips or reports from current or former employees
- Inspections by the Medical Service (MD) of the health insurance funds
- Announcements from the Association of Statutory Health Insurance Physicians or individual health insurance funds
- External audits (so-called company audits) by the tax authorities
- 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 are threatened under medical criminal law?
The penalty depends on the specific offense:
Intentional bodily harm (§ 223 StGB): Imprisonment for up to five years or a fine; dangerous bodily harm (§ 224 of the German Criminal Code): imprisonment from six months to ten years; bodily harm resulting in death (§ 227 of the German Criminal Code): imprisonment from three years to 15 years
Negligent bodily harm (§ 229 StGB): Imprisonment for up to three years or a fine
Negligent homicide (§ 222 StGB): Imprisonment for up to five years or a fine
Fraud (§ 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 (§§ 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 Federal Central Register, professional bans under Section 70 of the German Criminal Code (StGB), confiscation of assets under Sections 73 et seq. of the German Criminal Code (StGB), and disciplinary measures up to and including the revocation of professional licenses are possible consequences. 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 Administrative Offenses Act, as well as civil claims for damages. The reputational damage that criminal investigations can cause, even if no conviction results, should not be underestimated.
Criminal defense in medical criminal law – Galen Lawyers
Criminal investigations in medical law require an early and strategically focused defense. The lawyers at Galen Rechtsanwälte practice both general criminal law and white-collar crime, representing medical professionals nationwide and advising companies in the healthcare sector.
We begin by conducting a thorough review of the case file and analyzing 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 contact us to arrange an appointment.
Criminal liability for negligent bodily harm (§ 229 of the German Criminal Code) or negligent homicide (§ 222 of the German Criminal Code) requires, among other things, an objective breach of duty of care and a resulting violation of physical integrity. This could be the case, for example, with procedures not performed according to accepted medical standards. Not every adverse treatment outcome automatically constitutes criminal liability.
A lack of informed consent can render it invalid. This becomes relevant under criminal law if consent would not have been given had proper information been provided. The question of hypothetical consent plays a central role here.
Billing fraud requires intentional deception regarding facts relevant to billing, causing an error, a misapprehension of assets, and financial loss on the part of the payer—for example, through the disbursement of funds to which there is no entitlement. Not every erroneous billing fulfills this element of the offense. The decisive factor is primarily whether intentionally false information was provided.
Hospitals themselves, as businesses, cannot be held criminally liable under German criminal law; however, they may be subject to fines under administrative offenses law. Furthermore, confiscation measures are a possibility. Responsible board members and executives can also be prosecuted personally.
Bribery in the healthcare sector (§ 299a of the German Criminal Code) occurs when a member of certain healthcare professions demands, solicits, or accepts a benefit in connection with their professional practice. The decisive factor is the existence of an unlawful agreement. The benefit must be consideration for unfair preferential treatment in competition, specifically in certain processes within the healthcare sector defined by law – for example, the prescription of medications or the referral of patients. The other party – whoever offers, promises, or grants the benefit – can be prosecuted for bribery in the healthcare sector (§ 299b of the German Criminal Code).
A criminal conviction can lead to professional disciplinary action – up to and including the revocation of a medical license. Whether this occurs depends on the nature of the conviction and the circumstances of the individual case. Therefore, a thorough defense must consider potential professional consequences from the outset.
As a suspect, you are generally not obligated to comply with a police summons. This may be different if the summons comes from the public prosecutor's office. In any case, you should not make any statements to investigating authorities without first consulting a lawyer! Ill-considered statements are difficult to correct later in the proceedings.
Remain calm and do not make any statements regarding the allegations. As a suspect, you have the right to remain silent. Request to see the search warrant and contact a criminal defense attorney immediately – ideally during the search itself.