Doctors-GmbH is also possible in Rhineland-Palatinate

Constitutional Court demands constitutional interpretation of the law
For the care of private patients, doctors can also found a "Doctors' GmbH" in Rhineland-Palatinate. The Rhineland-Palatinate Health Care Act does not contain an absolute ban on such a branch, the Constitutional Court of Rhineland-Palatinate clarified in a recently published ruling of 31 March 2017 (Ref .: VGH N 4/16 and VGH N 5/16).

Doctors are allowed the establishment in the legal form of a GmbH only in a part of the federal states. According to the Rhineland-Palatinate Health Care Act, this was previously considered inadmissible. A dermatologist and a doctor offered cosmetic surgery and hair transplants. The district court Mainz had both the registration of their practice as a GmbH in the commercial register denied.

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The Palatine Higher Regional Court (OLG) Zweibrücken presented the dispute before the Constitutional Court. It was based on a general ban on a doctors' limited liability company in Rhineland-Palatinate. However, this violates the equality requirement and freedom of occupation.

However, the Constitutional Court has now dismissed the order for reference as inadmissible. The Higher Regional Court did not examine whether the law allows a constitutional interpretation. However, this is almost obvious, emphasized the Koblenz judges, pointing to an exception clause in the Rhineland-Palatinate medical profession law. Thereafter, the medical association may approve a GmbH, "if it is ensured that professional matters are not impaired".

The medical profession in Rhineland-Palatinate also allow a freelance medical activity in the legal form of a GmbH under certain conditions. It therefore speaks for everything that "professional matters are not impaired", if these conditions are met.

In the result it would therefore be obvious that the Rhineland-Palatinate Health Care Act can be construed in accordance with the constitution and also applied by granting the medical board special exemptions.

It is true that the Chamber of Physicians must decide on such an exception at its own discretion. However, that discretion may be "condensed" in each individual case to the extent that the exemption is granted. For the substantial interference in the occupational freedom would probably not be justified if the Doctors GmbH meets the requirements stated in the medical profession.

Affected by it is initially only the supply of private patients. The so-called contract physicians of the statutory health insurance companies can according to the admission regulations nationwide neither a single practice nor a Berufsausübungsgemeinschaft register as GmbH. Since this is federal law, the decision of a state constitutional court has no direct influence on it. However, the legal form of a limited liability company is also permissible in medical care centers (MVZ). mwo / fle