Introduction
As medical tourism has developed in Germany, the need for numerous supplementary service providers has become apparent. One area of this is covered by the so-called patient facilitators, patient coordinators and patient agencies. These have repeatedly been put on display, above all in negative headlines. In scandals concerning the treatment of international patients, the involvement of such a company can, as a rule, always be observed.
For the legally secure cooperation with such agencies, I am planning, together with leading legal expertise, to publish a whitepaper. For that reason, I will not address §§ 299a and 299b StGB here at the level of their specific statutory elements. In general, this blog post does not constitute legal advice or the product of such advice. It is merely intended to draw attention to relevant problems.
Background
Up to 250,000 foreign patients are treated in German hospitals and medical facilities each year. It is estimated that 40-45% of the patients treated are so-called "medical tourists", people who have primarily undertaken the journey for the purpose of treatment. The majority of medical tourists come from the immediate European neighbouring countries, followed by the member states of the Arabic- and Russian-speaking regions.
Medical tourism to Germany in its present form has existed for quite some time. As early as 1978, for instance, the former Libyan head of state Muammar Gaddafi underwent examination at the Deutsche Klinik für Diagnostik in Wiesbaden.
Medical tourism is a mark of distinction for the German healthcare system. And the German healthcare system has this hallmark of its excellence handsomely rewarded, with revenues of up to 1.2 billion euros. This revenue describes only the services generated by clinics and physicians. It does not include the revenue for the regular tourism industry, hotels, restaurants, cities and retail.
For the German healthcare system, the income generated by foreign patients is extremely attractive. On the one hand, this income does not fall within the scheduled budgeting, which means a more flexible use of these funds, and on the other hand, foreign cases are often billed outside the stringent remuneration model of DRG and GOÄ.
The treatment of foreign patients entails many compliance risks. As a rule, medical tourism in Germany runs through agencies, so-called patient facilitators. These acquire patients abroad, refer them to the German hospital and receive a commission for this, calculated on the total revenue that the hospital derives from the patient's treatment. This approach was and still is established, but it repeatedly leads to negative headlines.
On the Kiel Ruling
Despite the known problems, the Kiel ruling came as a shock to the industry. To begin with, it had not been assumed that the courts would take any interest in medical tourism. This is also one of the reasons why the model of percentage-based remuneration continues to this day.
A further reason for the great disruption is that the model of percentage-based remuneration, while not free of flaws, is a very good system for remunerating the services of patient coordinators. And yet the courts consider the system to be contrary to public policy.
Much more concerning in the Kiel case, however, is the collusion at hand. The claimant, together with the wife of the head of the hospital's international department, set up an account under a joint business name. He then transferred the payments received from the clinic into this account, which were subsequently split between the claimant and the head of the international department. In return, the head of the international department declared all patients not referred by the claimant as having been registered by him, thereby increasing the clinic's commission payments to the claimant. This conduct is unacceptable and is rightly summed up as contrary to public policy and to good faith.
However, the payment of a commission to a patient coordinator does not constitute an undesirable commercialisation of the medical profession. Foreign patients do not have barrier-free access to the German healthcare system. In 2013, 80% of clinics relied on the services of patient facilitators in order to acquire foreign patients.
"Then We'll Just Draw Up New Contracts!"
A complicated problem, but a simple solution? That is not the case here. In addition to the conflict of contracts contrary to public policy, there is the aggravating factor that agreements for the referral of foreign patients can also fulfil the statutory elements of §§ 299a and 299b StGB.
Of course, there are contractual arrangements that allow the cooperation to continue while at the same time reducing legal risks. However, these are usually so uneconomical that both parties (clinic and agency) will forgo the cooperation. The reason for this is that they were created solely with regard to the legal side, but without attention to detail for the specific field of business and the individual circumstances.
I have thus already seen many clinics that use the same contract for cooperation with 20 agencies (at home or abroad), and that without regard for the individual working methods of the cooperation partners.
This is where the combination of legal and business management expertise, specific to the field of medical tourism, is required.
