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No right to strike for doctors
Doctors have no right to strike. That confirmed on Wednesday, November 30, 2016, the Federal Social Court (BSG) in Kassel (Az: B 6 KA 38/15 R). It dismissed a lawsuit filed by Werner Baumgärtner, head of the Baden-Württemberg physicians' association Medi. He could not invoke the freedom of association enshrined in the Basic Law. Baumgärtner now wants to file a constitutional complaint.
Baumgärtner is a general practitioner in Stuttgart. On 8 October and 21 November 2012, he had closed his practice and expressly declared that he wanted to exercise his constitutional right to strike. Fearful of losing their medical license, other doctors were unwilling to make such an announcement. There were smaller rallies with other doctors in Stuttgart on these days.
(Image: liukovmaksym / fotolia.com) The Kassenärztliche Vereinigung Baden-Württemberg considered Baumgärtner's "strike" inadmissible and gave him a reprimand.
On the other hand, the doctor complained. He relied on the right to strike, enshrined in the Basic Law and also in the European Convention on Human Rights. This applies without restrictions, not only for workers, said Baumgärtner's lawyer Joachim Steck.
In addition, at least doctors in "healthcare practices" with a high proportion of legally insured depend on their status as a contract doctor. Due to the numerous narrow specifications, they are then extremely limited in their freelance freedom of choice and, like workers, they are subject to a whole catalog of duties. Without a right to strike there would be no way to ward off bureaucracy and enforce higher fees.
Depending on the strike objective, the lawyer believes that a medical strike could be directed against the Kassenärztliche Vereinigung or against the health insurances. Representatives of the defendant Kassenärztliche Vereinigung Baden-Württemberg said strikes could be a "supporting act" in the negotiations with the health insurance companies.
The BSG dismissed Baumgärtner's lawsuit. The right to strike was created for dependent workers. The extent to which strikes are therefore generally excluded for freelancers was left open by the Kassel judges. "In any case, contract doctors have no right to strike," said the Chairman Judge Ulrich Wenner. During their consultations contract doctors would also be available to their patients, this "mandatory attendance" had Baumgärtner culpably violated.
"The legislature has brought through the design of the doctor's law to compensate for the partially conflicting interests of health insurance companies and doctors to ensure in this way a reliable supply of the insured on reasonable terms," said the BSG-doctorate senate. The joint self-administration of physicians and health insurance companies provide for a negotiated solution and, if necessary, a judicial reviewable arbitration instead of strikes.
The contract doctors are involved in the securing order of the Kassenärztlichen associations for medical care. "A doctor can only accept this package altogether or not," Wenner said.
He emphasized, however, that physicians are not obligated to either political or fee-abstinence. Demonstrations are therefore allowed. However, the BSG left open the question of how to conclude a practice decision to participate in such a rally. Baumgärtner had explicitly announced a strike. He now wants to call the Federal Constitutional Court.
Because of the strike ban, numerous dentists in the city of Lower Saxony had collectively returned their license in 2004. For this purpose, the BSG had decided that these dentists have no fee claim against the health insurance, if they treat despite the admission return cash patients (judgment of June 27, 2007, Az .: B 6 KA 37/06 R). The law explicitly provides for strict sanctions. mwo / fle