News on billing fraud – Decision of the Higher Regional Court of Karlsruhe on the scope of damages for quarterly collective declarations with partial ‘fictitious services’. In its decision of 10 April 2024, the Higher Regional Court of Karlsruhe made a fundamental and pleasingly restrictive decision on the scope of fraud damages in the case of quarterly collective medical declarations with partial ‘fictitious services’ (1 Ws 80/24).
The case concerned a doctor who, as part of a quarterly collective declaration for around €1.2 million, had invoiced 37 coronavirus vaccinations totalling €804 that had not been provided in addition to a large number of other services that had been properly provided.
Citing the strictly formal concept of damages and the ‘guarantee function’ of the quarterly joint declaration, the public prosecutor’s office had assumed damages of around € 1.2 million and brought charges before the regional court. However, the regional court ‘only’ opened the main proceedings before the local court (court of lay assessors), as it had only assumed fraud damages of € 804. This decision was then confirmed by the Karlsruhe Higher Regional Court following an immediate appeal by the public prosecutor’s office. This pleasingly restrictive decision is to be welcomed in view of the principle of guilt.
However, a closer look shows that the path to this result is somewhat more complicated than the Karlsruhe Higher Regional Court believes. This is because the OLG wishes to limit the scope of damages to the ‘air services’ in the amount of € 804 on the grounds that the doctor is ultimately entitled to a new determination of his fee in the amount of the services actually provided despite the invalidity of the quarterly collective declaration. In the context of the balancing of assets when determining damages, it should be noted that the emergence of the correct fee claim depends on an application and examination by the health insurance company, which can be quite critical and correspondingly lengthy. In addition, this is associated with a considerable estimation discretion.
Only at the end of this process is a new fee notice issued and the fee actually earned paid out. It is therefore at least ‘bold’ for the Higher Regional Court of Karlsruhe to speak of ‘non-expired fee claims’ of the doctor to justify the very low ‘differential damages’, which had not actually arisen at the time of the offence. If you would like to know more about this topic, please feel free to contact us at any time. We would be very happy to answer any questions you may have.
