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

Elective service agreements pursuant to Section 17 (3) KHEntgG are a central instrument for the individualisation of medical treatment in DRG hospitals. They enable patients to choose treatment by certain leading or particularly qualified doctors – so-called elective doctors – for a separate fee, regardless of whether this was necessary or expedient for medical reasons in the individual case. On 13 March 2025, the Federal Court of Justice issued two rulings on the elective service agreements, namely on the personal obligation of the elective physician to provide services and the possibility of substitution in the event of foreseeable absence (III ZR 40/24) and on the other hand on the billing of elective medical services by a hospital operator on the basis of a "total hospital admission contract" (III ZR 426/23).

I. Facts and decision

In the case decided by the Federal Court of Justice on the personal obligation of the elective physician to provide services and the possibility of substitution in the event of foreseeable absence, a patient had concluded an elective service agreement that provided for treatment by a certain chief physician as an elective physician. In addition, the patient had  signed a "Patient Declaration on the Representation of the Elective Physician", in which the substitution of the elective physician was regulated without special conditions in such a way that the patient could decide by ticking the box whether she wanted to have the elective medical services provided by the elective physician or a representative or whether she wanted to do without them and only make use of general hospital services. In fact, with the patient's consent, the procedure was performed by a representative – and not by the doctor of choice personally. The hospital operator then demanded payment of the elective service remuneration.

The Federal Court of Justice states that elective service agreements that provide for the replacement of the elective physician without special conditions undermine the core content of the elective service, namely the personal provision of services by the elective physician. The question of whether the services of the representative may be invoiced separately as elective medical services depends on whether a substitute provision in an agreement on elective medical services is valid, which transfers the performance of the optional service to the permanent medical representative of the elective physician without special conditions. In the opinion of the Senate, this is in any case not the case if the "desired deputy" is agreed on the initiative of the hospital operator or the elective doctor. An individual agreement made on the initiative of the hospital operator or a doctor of choice in addition to the agreement on optional services with the content that elective medical services are carried out without special conditions by another doctor as the representative of the doctor of choice violates § 17.3 sentence 1 KHEntgG and is therefore void pursuant to § 134 of the Civil Code. This also applies expressly in the case of an individual agreement, since § 17.3 sentence 1 KHEntgG is a "mandatory protective provision under price law in favour of the patient".

The BGH therefore ruled in favour of the defendant patient.

II. New standards and boundaries

The judgment fits into the previous line of case law on the personal responsibility of the elective doctor, but draws the boundaries of the permissible representation of elective physicians even more narrowly.

The Federal Court of Justice thus rejects any practice that treats elective services merely as an organisational "label" without respecting their individual component in terms of content. Optional service agreements that allow substitution without special conditions are null and void.

III. Effects in practice

For hospitals and elective doctors, this ruling has a number of consequences:

• Strict implementation of the elective service agreement: The person named in the elective service agreement must personally perform the core service.
• Documentation: The actual implementation by the elective physician must be documented in a comprehensible manner.
• Information obligations: Patients must be clearly informed about who exactly provides which services. Any deviation can constitute a breach of duty.
• Organisational adaptation: Hospitals must design their internal processes in such a way that the availability of the elective doctor is also practically guaranteed – for example, in surgical planning, on-call duty, holiday replacement.
• Substitute regulations: In standard elective service agreements, substitute regulations are only valid if they are limited to cases in which the elective physician is not prevented from attending the elective service agreement and if the named permanent medical representative is designated as the representative.
• Individual agreements based on the provision of services by a representative in the event of foreseeable absence: In addition to special duties to provide information to the patient, these require that the doctor of choice is actually prevented from attending and that the reason for the absence is documented in the individual agreement.

IV. Conclusion

With the ruling of March 13, 2025, the Federal Court of Justice specifies the personal obligation to provide services for elective physicians and makes it clear: Contractual compliance takes precedence over clinic routine. Patients can rely on the fact that when concluding an elective service agreement, they will actually be treated by the person named in the elective service agreement – at least with regard to the medically formative services.

The ruling makes it clear that optional services are to be treated as legally binding individual agreements – not merely as an additional organisational offer in everyday hospital life. Representative regulations are to be interpreted narrowly and require special duties of disclosure.

We will explain the judgment of the Federal Court of Justice on the billing of elective medical services by a hospital operator on the basis of a "total hospital admission contract" shortly after the reasons for the decision have been published.