Facts of the decision
The decision centered on a pregnancy-related employment ban of the medical director of an MVZ. The management did not report this until three months later and only then transferred the management task elsewhere. In the meantime, the MVZ de facto had no medical director. A requested factual and arithmetical review of the accounts was initially rejected. However, the health insurance association, which had requested this review, successfully enforced in court that the accounts had to be reviewed. The court ruled that the MVZ was not entitled to a fee for the period in question, as there was no medical management during this time. There was no grace period for the replacement; if necessary, the management function had to be ensured through substitution arrangements.
Legal classification
In its ruling, the Munich Social Court represents a strict interpretation and emphasizes that medical management is an essential prerequisite both for the approval of an MVZ and for its billing. Medical management ensures that medical and professional concerns take precedence over economic interests.
Practical follow-up questions
The ruling raises practical and legal questions, for example with regard to absences due to vacation or illness as well as part-time employment. The Federal Social Court has so far accepted that medical management can also be carried out on a part-time basis, for example with half-day working hours. There are different views in the legal literature: While some authors consider a minimum weekly working time of ten hours to be sufficient, others call for mandatory substitution in the case of part-time employment.
In view of the statutory vacation entitlement, it seems logical to assume that an MVZ has a medical director in the event of a holiday-related absence of two to three weeks. The same is likely to apply to absences due to illness, as these occur unplanned and sanctioning through loss of remuneration would appear unfair.
Preventive measures
To avoid legal risks, MVZ operators can compensate for unforeseeable absences themselves at an early stage and with little effort by appointing deputy medical directors. The employer's right to issue instructions can be used for this purpose. It is also possible to permanently assign the management task by instruction. In both cases, the person concerned must be professionally and personally suitable and the instruction must be based on reasonable discretion. It is advisable to stipulate in the employment contract that the task of medical management must be assumed by doctors, at least temporarily.
Dr. Christoph Bialluch Julius Hardt