Lexploria

The European Commission of Human Rights sitting in private on

10 October 1986 , the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 November 1984 by

D.B. against the Federal Republic of Germany and registered on

7 August 1985 under file No. 11685/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the applicant,

may be summarised as follows:

The applicant is a German citizen and resident in Rüsselsheim. He is a

gynaecologist and practises as a panel doctor. In the proceedings

before the Commission, he is represented by Mr. M. Wenger, a lawyer

practising in Frankfurt.

The application concerns the following proceedings.

I.

On 15 September 1977, the Review Board (Prüfungsausschuss) of the

Hesse Panel Doctors' Association (Kassenärztliche Vereinigung)

curtailed by an amount of DM 1566 the reimbursement of the applicant's

fees, which he had charged during the first quarter of 1977 for the

treatment of persons insured with general health insurances. The

Panel Doctors' Association is a body instituted under the German

Insurance Act (Reichsversicherungsordnung) and settles, inter alia,

the panel doctors' accounts with the health insurances. The Board

proceeded from the fact that the applicant had exceeded the average of

fees charged by panel doctors in the local district by 176%. It

concluded that this figure indicated unnecessary medical services

which justified a curtailment according to S. 182 and S. 368(e) of the

German Insurance Act.

On 12 December 1977, the Review Board curtailed the applicant's fees,

which he had charged during the second quarter of 1977, for the same

reasons.

On 23 April 1980, the Appeal Board (Beschwerdeausschuss) of the Hesse

Panel Doctors' Association dismissed the applicant's appeal against

the decision of 15 September 1977 concerning the fees paid during the

first quarter of 1977. It held that the applicant had carried out

certain examinations of mycosis too often. However, it cancelled the

decision of 12 December 1977 concerning the fees paid during the

second quarter of 1977 on the ground that the applicant had already

reduced the number of the respective examinations. During these and

the following proceedings the applicant was represented by a lawyer.

On 25 September 1980, the applicant complained to the Frankfurt Social

Court (Sozialgericht) about the curtailment insofar as it had been

upheld by the Appeal Board on 23 April 1980.

On 4 June 1981, a hearing was fixed for 15 July 1981.

On 22 June 1981, the applicant requested a postponement in order to be

able to attend the hearing personally and to comment upon the medical

issues. On 24 June 1981, the Court refused to grant the postponement

which it considered as being unnecessary.

After the hearing, on 15 July 1981, the Frankfurt Social Court decided

upon the applicant's complaint in the presence of the applicant's

representative. The Court was composed of the presiding judge and two

honorary judges one of whom was a general practitioner. The Court

reduced the curtailment to 683.10 DM. It held that this amount could

have been saved if the applicant had treated his patients more

efficiently.

On 23 November 1983, the Hesse Social Court of Appeal

(Landessozialgericht) dismissed the applicant's appeal as being

inadmissible under the German Social Courts' Act

(Sozialgerichtsgesetz). The Court held that the applicant had not met

the legal conditions of appeal. The Court noted that the previous

instance had not granted leave for appeal. Moreover, the applicant

had failed to prove either a fundamental importance of his case or

fundamental breaches of procedural law. In particular, the Court

observed that the previous instance had been entitled to rely on the

obvious disproportion of 176% between the applicant's fees and the

average of fees charged in the local district, and not to order the

preparation of a special medical expert's opinion. Morever, the

Appeal Court pointed out that the lower court's hearing had not been

unfair in view of the fact that the applicant had been represented by

his lawyer who had been able properly to present the case.

On 7 August 1984, the Federal Social Court (Bundessozialgericht)

dismissed the applicant's request for leave to appeal

(Nichtzulassungsbeschwerde). The Federal Court upheld the Appeal

Court's refusal to order a medical expert's opinion, the use of which

had not been evident.

On 22 October 1984, the Federal Constitutional Court rejected the

applicant's constitutional complaint as offering no prospect of

success.

II.

On 10 January 1978, the Review Board of the Hesse Panel Doctors'

Association also curtailed the applicant's fees, which he had charged

during the first quarter of 1977 for the treatment of persons insured

with special health insurances (Ersatzkassen) by an amount of

801.36 DM. The Board specially objected to the applicant's

prescriptions which exceeded the average of prescriptions issued in

the applicant's local district by 96%. The Board observed that the

applicant had issued prescriptions twice or without any indication as

to the disease concerned. The curtailment was assessed on the basis

of an examination of a sample of 20% of the applicant's cases.

Upon the applicant's appeal (Widerspruch) the Review Board reassessed

the curtailment concerning the first quarter of 1977. On 30 May 1978,

the Board reduced the curtailment to 560.90 DM.

On 17 April 1978, the Review Board also curtailed the applicant's fees

which he had charged during the second quarter of 1977 by 382.20 DM.

The Board noted that the applicant's prescriptions had exceeded the

average of prescriptions issued in the local district by 91%.

On 18 February 1980, the Appeal Board of the Hesse Panel Doctors'

Association dismissed the applicant's appeals against the decisions of

30 May and 17 April 1978. The Board held, inter alia, that the excess

had been caused by improper and expensive prescriptions.

Upon the applicant's complaint, the Frankfurt Social Court, on 4 June

1981, fixed a hearing for 15 July 1981. The applicant's request for a

postponement was not granted.

After the hearing which had been attended by the applicant's lawyer

the Social Court dismissed the applicant's complaint. The Court found

that the applicant when issuing prescriptions in the periods at issue

had lacked the necessary efficiency within the meaning of S. 2 para. 2

and S. 17 para. 1 of the Special Insurance Act

(Ersatzkassenverordnung). The Court proceeded from a general

comparison with the average of prescriptions issued by other doctors

in the applicant's local district. The Court also examined a sample

of the applicant's prescriptions as well as his lower prescriptions

during subsequent accounting periods.

The applicant's appeal was dismissed by the Hesse Social Court of

Appeal on 23 November 1983. The Court held that the disproportion

stated by the previous instances indicated the inefficiency of the

applicant's methods of treatment and justified the curtailments. It

concluded that the applicant had failed to disprove the assumption of

inefficiency as he had not substantiated special features of his

practice or his treatment of mycosis that would justify the full

accounts at issue.

On 8 August 1984, the Federal Social Court dismissed the applicant's

request for leave to appeal as being inadmissible. The Court held

that the request had not been properly substantiated and was out of

time. The applicant's submissions as to the treatment of mycosis did

not explain the respective excessive accounts.

On 2 November 1984, the Federal Constitutional Court declared the

applicant's constitutional complaint inadmissible. The Court found

that the applicant had not properly exhausted the available remedies

and that, in any event, the complaint offered no prospect of success.

COMPLAINTS

The applicant complains under Article 6 para. 1 (art. 6-1) of the

Convention that both sets of proceedings before the German Social

Courts were unfair and improperly conducted. He alleges in particular

that the global curtailments of his fees prevent him from treating his

patients correctly. The general comparison of his prescriptions with

the average of prescriptions of other panel doctors disregards their

antiquated methods of treatment in cases of mycosis which is the

speciality of his practice. Moreover, the applicant complains that

the respective courts relied on the medical opinion of honorary judges

who, although being medical practitioners, had not been aware of the

latest developments in the diagnosis and treatment of mycosis. The

courts failed to take the evidence which he had proposed and did not

enable him to attend the Frankfurt Social Court's hearings.

THE LAW

1. The applicant complains under Article 6 para. 1 (art. 6-1)

of the Convention of the proceedings before the German Social Courts.

The Commission observes that these proceedings concerned the

curtailment of the applicant's fees as a panel doctor for which he

charged the respective general as well as special health insurances.

The first issue to be decided is, therefore, whether or not these

proceedings involved a determination of the applicant's civil rights

and obligations within the meaning of Article 6 para. 1 (art. 6-1)

of the Convention.

The Commission recalls the case-law of the Convention organs according

to which it is by the means of private relationships with patients

that medical practitioners in private practice avail themselves of the

right to continue to practise. It follows that the right to continue

to exercise the medical profession in general is of a civil nature

within the meaning of Article 6 para. 1 (art. 6-1) of the Convention

(see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, Series A no. 43 para. 48 and König judgment of

28 June 1978, Series A no. 27 para. 93).

It is true that in the present case the curtailment of the applicant's

fees to be paid under the health insurance schemes did not infringe

his right to practise as a doctor. However, the Commission observes

that the special feature of settling the medical practitioners' fees

under the German health insurance schemes has to be considered in the

light of the basically private character of the contractual

relationship between medical practitioner and patient.

In these circumstances the Commission concludes that the proceedings

at issue concerned the determination of the applicant's civil rights

and obligations within the meaning of Article 6 para. 1 (art. 6-1).

2. The Commission also notes that on 2 November 1984 the Federal

Constitutional Court declared the applicant's constitutional complaint

concerning the second set of proceedings inadmissible. It found that

the applicant had not exhausted the remedies available to him under

German law. An issue arises, therefore, as to whether or not the

applicant has exhausted domestic remedies, within the meaning of

Article 26 (art. 26) of the Convention, with regard to the second set

of proceedings. However, the Commission does not regard it as

necessary to settle this question as the application as a whole is in

any way manifestly ill-founded for the following reasons.

3. The applicant complains under Article 6 para. 1 (art. 6-1)

of the Convention that the respective social courts' proceedings were

unfair and improperly conducted. He alleges in particular an

incorrect application of German law in view of the assumption that his

methods of treatment and prescription had been inefficient. He

complains that the general comparison between his prescriptions and

the average of prescriptions charged by the other panel doctors in his

local district led to incorrect and unjustified results.

The Commission recalls that, in accordance with Article 19 (art. 19)

of the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,

236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in the instant case the applicant complains under

Article 6 para. 1 (art. 6-1) of the Convention that he was unable

personally to attend the hearings before the Social Court on

15 July 1981 and that his requests for adjournment were refused.

The right to a fair hearing guaranteed by Article 6 para. 1 (art. 6-1)

of the Convention contemplates that everyone who is a party to civil

proceedings shall have a reasonable opportunity of presenting his case

to the court under conditions which do not place him under a

substantial disadvantage vis-à-vis his opponent (No. 2804/66,

Dec. 16.7.68, Collection 27 p. 61). In the instant case the applicant

was represented at the hearings before the Social Court on

15 July 1981 by his lawyer who was able properly to present the case.

The applicant has failed to show that his personal presence, in

addition to that of his lawyer, would have been relevant to the

formation of the Social Court's opinion and that, therefore, the

Court's refusal of his request to adjourn the hearings was arbitrary

and rendered the proceedings as a whole unfair (cf. No. 434/58,

Dec. 30.6.59, Collection 1 p.1).

The applicant moreover complains under Article 6 para. 1 (art. 6-1)

of the Convention that the Social Courts refused to take the further

evidence proposed by him concerning the treatment of mycosis. However,

the curtailments complained of were not only based on grounds of

inefficient treatment of mycosis and the applicant was granted a

margin by which he was allowed to exceed the average of fees and

prescriptions. In these circumstances the Court's refusal to obtain

further evidence cannot be regarded as unfair.

The applicant's submissions do not, therefore, disclose any appearance

of a violation of the rights and freedoms set out in Article 6 para. 1

(art. 6-1) of the Convention. It follows that the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

B. v. THE FEDERAL REPUBLIC OF GERMANY

B. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI