Billing of elective medical services by a hospital operator

As mentioned in Update Health Care 4/2025 on "The personal provision of services as a duty of the elective physician and the possibility of substitution in the event of foreseeable absence – New clarifications by the Federal Court of Justice", the Federal Court of Justice (BGH) issued a ruling on March 13, 2025 (Ref. III ZR 426/23) on the billing of elective medical services by a hospital operator on the basis of a "total hospital admission contract".

According to the Hospital Remuneration Act (KHEntgG), hospital services include general hospital services (Section 2 KHEntgG) and elective services. In the opinion of the BGH, the contractual relationship between the hospital operator, treating physician and patient when agreeing on elective medical services is a question of contract design in individual cases. In addition to the "split doctor-hospital contract", typical forms of contract include the "total hospital admission contract" and the "total hospital contract with additional doctor contract"

1. Total hospitalization contract

According to the BGH, in the case of a so-called total hospital admission contract, a hospital operator can effectively agree with the patient (in addition to the general hospital services) that the hospital operator is obliged to provide all services required for inpatient treatment, including all elective medical care, without the patient having to conclude an additional contract for elective medical services with the attending physician. The hospital operator is entitled to charge separately for the elective medical services provided on this contractual basis in accordance with Section 17 (3) sentence 7 KHEntgG, applying the scale of fees for doctors analogously.

2. Total hospitalization contract with additional physician contract

In the case of a total hospital contract with an additional doctor's contract, the patient concludes a further contract with the attending doctor for the optional medical services in addition to the hospital admission contract and the optional services agreement with the hospital operator - either expressly or tacitly. The elective physician or the chain of elective physicians within the meaning of Section 17 (3) sentence 1 KHEntgG is then the contractual debtor of the patient for the elective service, while the hospital operator is obliged to provide comprehensive services including the medical services. There is therefore a double obligation with regard to the optional service. Both the hospital operator and the elective doctor are liable under the contract for medical treatment errors. However, a claim for remuneration only arises in the person of the elective doctor.

An agreement on the type and scope of services to be provided by the hospital operator as well as the remuneration to be paid by the patient is, in the opinion of the BGH, valid due to the principle of contractual freedom, provided that it does not violate price regulations or other legal prohibitions within the meaning of Section 134 BGB. In the opinion of the BGH, the Hospital Remuneration Act does not exclude the hospital operator from liquidating its own elective medical services provided by employed or civil servant doctors of the hospital.

Contrary to the opinion of the appeal, the "non-existence of a separate liquidation right" does not result either from the wording or the system of § 17 KHEntgG.

In this context, the BGH points out that

a) (medical and non-medical) optional services must differ from general hospital services within the meaning of Section 2 (2) KHEntgG;
b) separate invoicing must be agreed with the hospital operator (without this being limited to non-therapeutic and non-diagnostic services);
c) an effective appointment as an elective doctor requires a qualification that goes beyond the specialist standard.

The last point in particular should be of interest to practices. In the opinion of the BGH, an additional fee due to elective medical services is only justified if the treating elective doctor has outstanding qualifications. The appointment of a doctor as an elective doctor who has no special experience or outstanding expertise is in breach of this pricing requirement. It is therefore void in accordance with § 134 BGB. However, an elective doctor does not have to hold a leading position in the hospital. Special experience and the outstanding competence of a doctor can (also) be expressed in the fact that the doctor holds a managerial position in the hospital. However, this is not mandatory

3. Effects in practice

Particularly in the case of contractual arrangements that are regularly encountered in practice, whereby doctors in private practice work part-time in hospitals as salaried doctors and elective medical services are billed for these doctors, it should also be checked - in addition to avoiding an assignment for a fee - whether there is a difference to the general hospital services and whether the (elective) doctor (demonstrably) has a qualification that goes beyond the specialist standard.