Ref.: 25 O 120/ 14
Announced on: 10.05.2016
Cologne Regional Court
IN THE NAME OF THE PEOPLE
Judgment
In the legal dispute
of **** GmbH. represented by the Gf. ,
Plaintiff,
Attorneys-at-law ***,
against
Ms *** Cologne,
Defendant,
Attorney-at-law Bernd Brandl. Neusser Straße
182, 50733 Cologne,
the 25th Civil Chamber of the Regional Court of Cologne
in written proceedings with a deadline for written submissions of 26.04.2016 by the judge at the Regional Court *** as a single judge
ruled:
The action is dismissed.
The plaintiff shall bear the costs of the legal dispute.
The judgment is provisionally enforceable. The plaintiff may avert enforcement by providing security amounting to 120% of the amount to be enforced, unless the defendant provides security in the same amount prior to enforcement
Facts of the case
The plaintiff is asserting fee claims against the ophthalmologist Dr. *** (hereinafter: assignor) on the basis of assigned rights. At the time, the defendant received ophthalmologic treatment from the assignor under the diagnosis of age-related blindness. The treatment was carried out with intraocular Lucentis injections. The treatments on 28.08.2013, 11.09.2013, 25.09.2013 and 02.10.2013 are the subject of the dispute. Further injections were also carried out before and after this date, but their costs were reimbursed by the defendant’s statutory health insurance company, AOK Rheinland/Hamburg, and are therefore not the subject of the dispute. The liquidations of 28.08.2013 for EUR 3,116.40, of 11.09.2013 for EUR 3,116.40, of 25.09.2013 for EUR 3,116.40 and of 02.10.2013 for EUR 1,853.93, to which reference is made for further details, relate to the treatments in dispute. It is undisputed that no payments were made in respect of the aforementioned liquidations despite corresponding reminders.
The plaintiff believes that it has the right to sue. In this respect, it refers to a factoring agreement concluded with the assignor together with the inclusion of the disputed receivables in its monthly statements to the assignor. It claims that the liquidations are justified and fully comply with the GOÄ. The defendant was aware from the previous treatment cycles that billing was not carried out directly via her health insurance card with the AOK Rheinland/Hamburg, but with her personally. In this knowledge, the defendant had accepted the treatment services at issue. Furthermore, she had been informed both in writing and orally that these were purely private medical services for which she was personally liable. The defendant had signed the corresponding agreement. It had not disclosed a lack of capacity to the assignor. Neither the assignor nor his employees had given any assurances regarding possible reimbursement by the statutory health insurance fund.
The plaintiff requests that
1. the defendant be ordered to pay the plaintiff € 3,116.40 plus interest in the amount of 5 percentage points above the base interest rate since October 24, 2013,
2. the defendant be ordered to pay the plaintiff € 3,116.40 plus interest in the amount of 5 percentage points above the base interest rate since November 7, 2013,
3. Order the defendant to pay the plaintiff € 3,116.40 plus interest in the amount of 5 percentage points above the base interest rate since November 21, 2013,
4. Order the defendant to pay the plaintiff € 1,853.93 plus interest in the amount of 5 percentage points above the base interest rate since November 28, 2013,
5. Order the defendant to pay the plaintiff € 20 reminder costs.
The defendant requests that
the action be dismissed with costs
The defendant disputes the plaintiff’s right to claim. It also disputes the justification of the fee claim and claims that it had already explained to the assignor at the beginning of the treatment that it would not be able to make any payments itself. The assignor then assured her that she would not have to pay anything and that the health insurance company would cover the costs. The defendant claims that the invoices were last submitted to the AOK Rheinland/Hamburg directly by the assignor before the treatments in dispute. When she received reminders from the assignor in October 2013, an employee of the assignor told her that she could throw them away. The defendant denies having signed a written treatment agreement and points out that she was unable to read such agreements because her eyesight was too weak to read at the time. Such an agreement was also not read to her.
For further details of the facts and the dispute, reference is made to the pleadings exchanged between the parties and the documents submitted for the file.
The chamber took evidence by obtaining official information from the AOK Rheinland/Hamburg by court orders dated 15.05.2015 and 29.09.2015. With regard to the results of the taking of evidence, reference is made to the information provided by AOK Rheinland/Hamburg on 02/07/2015 and 08/10/2015 together with a copy of the socio-medical opinion of the Medical Service of the North Rhine Health Insurance Fund dated 22/10/2013.
With the consent of the parties, the written procedure was ordered by order dated 12/04/2016 and the end of the written procedure was set for 26/04/2016, Section 128 II ZPO.
Reasons for the decision
The action is unfounded. The plaintiff has no fee claim from assigned rights against the defendant from the treatment contract concluded between the defendant and the assignor in conjunction with §§ 398, 630a BGB.
The plaintiff’s application is to be interpreted to the effect that, contrary to the wording of the application under 3), an amount corresponding to the invoice amount of € 3,116.40 is to be asserted, §§ 133, 157 BGB analogously. The amount stated in the statement of claim deviating from this is clearly a mere typing error.
It is irrelevant whether the plaintiff has the right to sue. It can also be left open whether the defendant signed the submitted written remuneration agreement or whether it was aware of its content when it signed it. In any case, the submitted written remuneration agreement – assuming the aforementioned circumstances in favor of the plaintiff – is not effective and therefore not suitable to establish an obligation to pay on the part of the defendant.
In accordance with Section 18 (8) sentence 3 no. 2 BMV-Ä, the panel doctor may only demand remuneration from the insured person if and insofar as the insured person expressly requests to be treated at their own expense before the start of treatment and has confirmed this in writing to the panel doctor. This provision applies to treatment requested by patients with statutory health insurance as private patients despite and irrespective of existing insurance cover under statutory health insurance. In order not to unreasonably disadvantage the patient and to protect him from unnecessary financial burdens, he must be expressly informed of the existing insurance cover – also in the written confirmation. As the Senate pointed out in its decision of January 5, 2015, the agreement on elective medical treatment of February 3, 2013, on which the lawsuit is based, submitted as Annex K 25, does not contain such a reference. In contrast, according to Section 18 (8) sentence 3 no. 3 BMV-Ä, the contract doctor may demand remuneration from the insured person for treatment measures for which there is no insurance cover under the statutory health insurance scheme if the written consent of the insured person has been obtained in advance and the latter has been informed of the obligation to bear the costs. This requirement is met by the agreement dated 03.02.2013 submitted as Annex K 25.
The decisive question in the dispute between the parties is therefore whether the disputed treatments of the plaintiff with Lucentis due to her age-related blindness during the treatment period constituted services that were covered by the statutory health insurance according to the defendant’s assertions, or whether they were treatment measures that were not covered by the insurance according to the plaintiff’s assertions. In the opinion of the Chamber, this question must be answered in favor of the defendant based on the results of the evidence taken. In this respect, the Senate already referred in its decision of January 5, 2015 to the circular of the Federal Insurance Office of August 18, 2010, in which the Federal Insurance Office, as the supervisory authority for the federally funded health insurance funds, assumed that the treatment with Lucentis at issue was covered by the statutory health insurance in the context of its supervisory activities, for which, however, in the absence of a
Inclusion in the Uniform Scale of Assessment, services could not be provided by way of benefits in kind, but only by way of cost reimbursement pursuant to Section 13 (3) SGB V. This also corresponds to the undisputed practice of the AOK Rheinland/Hamburg in the run-up to the treatments at issue here, which, according to the essentially identical descriptions of both parties, was such that the treatments were not billed via the health insurance card, but were formally invoiced to the defendant and paid to the defendant after receipt of the reimbursement. This procedure is also evident from the statement of the assignor dated 18.03.2016 submitted by the plaintiff for the file. Irrespective of the way in which the costs of the treatment were borne by the AOK Rheinland/Hamburg – whether by way of the principle of benefits in kind by direct billing via the health insurance card or by way of reimbursement of costs on invoices issued to the defendant – in the view of the Chamber, it must be assumed that the benefit is covered by the insurance cover in the statutory health insurance. This is because the method of invoicing is a purely organizational and insurance-related question, which has no influence on the scope and extent of the insurance cover. The fact that the costs of treatment with Lucentis were in principle already borne by the AOK Rheinland/Hamburg at the time of the defendant’s diagnosis, provided that the other relevant conditions were met, is not in principle in dispute between the parties. This is also evident from the official information obtained by the Chamber from AOK Rheinland/Hamburg on July 2, 2015 and October 8, 2015, in which it did not deny the fundamental eligibility for reimbursement, but merely referred to the lack of socio-medical requirements or missing medical documents for the purpose of the final examination and assessment of eligibility for reimbursement. The socio-medical opinion of the Medical Service sent with the official information dated 8 October 2015 also shows that, in accordance with the content of the circular letter from the Federal Insurance Office dated 18 August 2010, the treatment in dispute was also considered at the time to be part of the range of benefits provided by the statutory health insurance funds and for this reason a more detailed medical examination of the benefit requirements was carried out. However, this means that the treatments at issue here fall under the provision of § 18 Para. 8 S. 3 No. 2
BMV-Ä. An effective agreement on the obligation to pay remuneration therefore required a reference to the existing insurance cover, which was missing in the present case. The provision of Section 18 (8) sentence 3 no. 2 BMV-Ä is also not to be reduced teleologically in cases in which – as in the present case – the insurance cover in the statutory health insurance is exceptionally not granted by way of the principle of benefits in kind, but by way of a reimbursement claim in accordance with Section 13 (3) SGB V, according to the opinion of the Senate set out in the decision of 05.01.2015, which the Chamber endorses. In these cases, too, a corresponding reference is required. In contrast to a claim for benefits in kind against the statutory health insurance, the patient does not face any unnecessary financial burden as a result of the reimbursement claim. However, in order to be able to assert the claim for reimbursement, the patient is equally dependent on clear and unambiguous information.
The ancillary claims share the legal fate of the main claims.
The procedural ancillary decisions are based on §§ 91, 708 No. 1.2. 711 ZPO.
Amount in dispute: € 11,203.13
*** as single judge