Pool doctor in the contractual dental emergency service is not automatically self-employed

Press release of the Federal Social Court of 24.10.2023 - B 12 R 9/21 R

On 24 October 2023, the Federal Social Court (Bundessozialgericht, BSG) issued its eagerly awaited ruling on the question of the social security obligation of so-called pool doctors who participate in the (dental) emergency service and denied that the plaintiff dentist was self-employed. Although the BSG emphasises in its press release the importance of the circumstances of each individual case, there is no question that this ruling will have far-reaching consequences for a large number of (dental) doctors on emergency and on-call duty. 

Facts

The Association of Statutory Health Insurance Dentists (Kassenzahnärztliche Vereinigung) organises emergency services. For this purpose, the defendant operates an emergency service centre in which it provides staff, equipment and material. The plaintiff dentist was no longer licensed to provide contractual dental care after selling his practice. The plaintiff informed the defendant of his willingness to take on specific shifts in this emergency service centre, which were mainly on weekends. On the basis of this, the defendant assigned him to specific shifts at its discretion. During a shift, one or two dental assistants were present in addition to the plaintiff, who carried out assistance and documentation activities. The plaintiff received a fixed hourly fee for his services; he was not entitled to patient-related billing. In the status determination proceedings initiated by the plaintiff, he took the view that his work for the defendant constituted dependent employment. However, this was unsuccessful.

The lower courts dismissed the action and, in agreement with the defendant Deutsche Rentenversicherung, justified the dentist's self-employed activity, inter alia, by stating that the plaintiff had been called upon by the Kassenzahnärztliche Vereinigung Baden-Württemberg (Association of Statutory Health Insurance Dentists) to perform emergency dental services by means of an administrative act (requiring cooperation) and that he had participated in contractual dental care for the duration of the emergency service. Thus, the relationship between the plaintiff and the defendant was almost entirely characterised by public-law norms.

The plaintiff's appeal against this decision was successful.

Content of the press release

According to its press release, the Federal Social Court followed the plaintiff's view that participation in the emergency service of panel dentists alone did not automatically lead to the assumption of self-employment. Rather, even then, an overall assessment of the concrete circumstances had to be carried out. The plaintiff had been integrated into the procedures organised by the Association of Statutory Health Insurance Dentists and had not had any decisive, let alone entrepreneurial, influence on them. The plaintiff had also been paid by the hour, irrespective of specific treatments. He already did not have billing authority, which was actually typical for the contract dentist law. The fact that the plaintiff was able to act freely and on his own responsibility in the specific medical treatment as a dentist, on the other hand, was not of decisive importance. Consequently, the plaintiff was subject to compulsory insurance in the present emergency service activity on the basis of his dependent employment.

Classification and significance of the decision for the practice

Although a conclusive assessment of the decision is not possible without reading the reasons for the decision – which are not yet available – the result of the BSG's decision does not come as a surprise. Already in its extremely practice-relevant decision on the social security obligation of fee-based physicians working in hospitals (BSG, judgement of 4.6.2019 - B 12 R 2/18 R), the BSG had emphasised that an integration into an external work organisation and the lack of an entrepreneurial risk were not compensated by the freedom of the employed physician to issue instructions, which was limited to the core area of medical treatment.

The considerations of the BSG at that time also apply to the present case. For here, too, the plaintiff dentist volunteered to take on shifts, i. e. he could not be unilaterally assigned to shift schedules. However, according to the agreement on concrete shifts, his service consisted solely in making his labour available. Premises, equipment and assisting staff were provided by the defendant. In contrast, the plaintiff did not assume any entrepreneurial risk, which was reflected in particular in the payment of an hourly fee. On the other hand, the plaintiff was not entitled to bill the patients, so that he could not influence his remuneration through his performance.

The immense significance of the present decision is obvious.

In the run-up to the announcement of the ruling, the Association of Statutory Health Insurance Physicians of Baden-Württemberg had already warned on its website that the medical on-call service in Baden-Württemberg could not be continued in its current form in the event that the BSG found that the plaintiff dentist was obliged to pay social security. This was because the service was largely provided by the dentist's patients. This is because this is largely taken over by doctors who work voluntarily in on-call duty, who, because they are comparable to the plaintiff, are then also to be regarded as liable for social insurance.

This assessment is to be agreed with, especially since the organisational structure in the medical on-call service is in many cases comparable to that on which the decision of the BSG was based. For example, within the framework of the (dental) on-call service, pool doctors regularly take over services in emergency practices after they have volunteered for this. As a rule, they do not use their own staff or equipment for these services and do not bill the patients, so that, in line with the considerations of the BSG, dependent employment is to be assumed in these cases as well.

Practical advice

The decision of the BSG caused a great stir in the healthcare sector immediately after it became known and, comparable to the reaction to the decision on in-house lawyers, triggered calls for a change in the law. In view of the uncertainty as to whether and, if so, in what way the politicians will comply with these demands, it does not seem opportune to merely wait for further developments. Instead, anyone who employs (dental) doctors as freelancers in the context of on-call or emergency services should immediately subject their organisation to a critical examination with the help of expert legal advice, in order to assess the risk of these doctors becoming falsely self-employed and, if necessary, exclude it by taking appropriate measures.