Rudolph Rechtsanwälte defends doctors, dentists, pharmacists, those responsible for nursing care, and people in charge of clinics, medical care centers (MVZ) and healthcare businesses who face a criminal allegation or have been affected by a search, a summons or a letter from the public prosecutor’s office.
What medical criminal law involves
Criminal proceedings can threaten a doctor’s professional livelihood long before a judgment is delivered. Alongside the allegation itself, the doctor’s licence to practice, authorization to treat patients covered by statutory health insurance and the practice’s reputation are often at stake. Medical criminal law is not a separate code. It is the application of general criminal law and criminal procedure to matters arising in medical practices, hospitals, pharmacies and nursing care. What makes these cases distinctive is the interaction between medical facts, billing rules, professional regulation and criminal procedure. A defense that considers only one of these areas does not go far enough.
Rudolph Rechtsanwälte in Nuremberg has defended healthcare professionals for many years. Dr. Tobias Rudolph is a specialist lawyer for criminal law and for tax law and a member of Vereinigung Anwälte für Ärzte e.V., an association of lawyers for doctors. Laura Todde focused on white-collar and medical criminal law during her university studies. Where issues concerning statutory health insurance practice, professional regulation or social law arise, we coordinate the defense with colleagues specializing in medical law and with suitably qualified experts.
Criminal investigations against doctors: the first steps
Many proceedings begin without attracting attention: with an enquiry from a health insurer, a letter from the Association of Statutory Health Insurance Physicians, a summons as a witness or an invitation to comment as a suspect. Others begin with a search. For suspects, the same principle applies: do not make a statement about the allegation before the case file has been reviewed. As a suspect, you have the right to remain silent; your silence must not be held against you. A premature statement that oversimplifies medical procedures or inaccurately describes billing processes can be difficult to correct later.
As defense lawyers, we first apply for access to the case file. Only once the allegation and the evidence are known do we decide with you whether and how to respond. In many cases, the course of proceedings can be influenced at the investigation stage: through a substantiated statement, medical or billing documents, or an expert assessment that undermines the basis of the allegation.
Allegations of billing fraud
Allegations of billing fraud under § 263 of the German Criminal Code (StGB) commonly arise from plausibility checks, recovery claims by the Association of Statutory Health Insurance Physicians, information from health insurers or reports from the professional environment. Typical allegations concern billing for services that were not provided or were not provided personally, billing without the required qualification or authorization, breaches of the rules on personal provision of services, and the use of freelance healthcare staff who in reality work as employees. The last of these points is addressed separately below.
Not every recovery claim proves intentional fraud. The defense first establishes which fee, contractual and social law rules applied to the particular service, what was actually provided, what could lawfully be billed and what the person responsible knew. Billing rules are complex and change over time. A mistake about their scope is different from deliberate deception. Any loss must also be calculated specifically. Broad extrapolations by the investigating authorities often do not withstand detailed scrutiny.
Billing route, delegation and loss
The specific billing route is decisive from the outset. Services for patients covered by statutory health insurance are generally billed through the Association of Statutory Health Insurance Physicians under the federal framework agreement and the uniform assessment standard (EBM) pursuant to § 87 SGB V, whereas private medical services are billed under the fee schedule for doctors (GOÄ). Hospitals, laboratories, home nursing care under § 37 SGB V and nursing facilities operating under a care agreement pursuant to § 72 SGB XI each follow their own remuneration rules, contracts and qualification requirements. Under § 4(2) GOÄ a doctor may also bill for services performed under his or her supervision and professional instructions, and an express special rule applies to basic laboratory services. Section 32 of the Ordinance on Statutory Health Insurance Physicians (Ärzte-ZV) requires doctors to practice personally on an independent basis (in freier Praxis) but provides for locums and assistants. Doctors authorized to treat statutory health insurance patients may employ other doctors under section 32b Ärzte-ZV, subject to approval by the authorization committee. The fact that a service was not carried out directly by the doctor does not by itself establish whether it could be billed.
The loss also depends on whether a remuneration claim existed. In a nominee-shareholder case involving a medical care center (MVZ), the Federal Constitutional Court did not object to the finding that properly performed treatment does not exclude a loss where no remuneration claim existed under social law and the Association of Statutory Health Insurance Physicians paid by mistake. At the same time it requires the loss to be quantified in an economically comprehensible manner and permits a sound estimate of a minimum loss only where uncertainties remain (Federal Constitutional Court, order of 5 May 2021, 2 BvR 2023/20 and 2 BvR 2041/20, paras 15 to 19). In a case concerning the billing of coronavirus tests, the Federal Court of Justice clarified that individual incorrectly billed or unperformed services do not extinguish the remuneration claim for other services billed at the same time, provided all formal and substantive billing requirements are met for those other services (judgment of 4 December 2024, 5 StR 498/23, para 27). Whether other requirements for payment were missing or misrepresented must be examined separately. Neither does every formal error wipe out the whole quarter, nor does every treatment actually provided exclude a loss.
There is no offense of negligent billing fraud (§ 15 StGB). A person who is unaware of a circumstance forming part of the statutory offense does not act with intent (§ 16 StGB). An avoidable mistake as to the unlawfulness of the conduct, by contrast, affects only culpability and may lead to a mitigated sentence (§ 17 StGB). Plausibility checks under § 106d SGB V and the health insurers’ units for combating misconduct under § 197a SGB V are instruments of review and suspicion, not a presumption of intent. Who prepared the billing, which default settings of the practice software were in operation, who was internally responsible and what training was available are therefore concrete matters of evidence. Carefully obtained legal advice can be relevant to intent and culpability, but it is no guarantee of impunity.
Practice structures, freelance staff and § 266a StGB
In cooperation and investor models it is often doubtful whether the person billing the services was practicing independently within the meaning of the statutory health insurance rules. In its judgment of 9 July 2026, 3 StR 110/26, the Federal Court of Justice set aside the acquittal of a managing director who had engaged dentists as practice managers with a share of turnover within operating companies. What matters, according to the court, is not the heading of the contract but whether the dentist personally bore the opportunities and risks of professional success, enjoyed sufficient professional and personal freedom of action and, on leaving, retained a chance to realise the practice value he or she had helped to build. The Federal Court of Justice has referred the case back to a different chamber of the Regional Court for a new hearing. The judgment does not prohibit cooperation arrangements or investor participation, but it shows that actual structures count rather than contract templates.
The allegation of withholding social security contributions under § 266a StGB must be kept apart from the requirement to practice independently under those rules. At para 24 the Federal Court of Justice expressly states that independent practice under those rules and self-employment under social security law are not identical, even though both require an overall assessment based on partly similar criteria. For freelance doctors, freelance nurses and other freelance staff it follows that bogus self-employment is not automatically billing fraud and that a permissible billing route does not exclude contribution liabilities. The two allegations have their own requirements and must be examined separately.
Criminal allegations connected with medical treatment
An unfavorable treatment outcome is not a criminal offense. If an investigation is nevertheless opened for negligent bodily injury or negligent homicide, a breach of the duty of care, avoidability, causation and individual fault must each be established. It is also important to distinguish between defective treatment and treatment performed in accordance with professional standards but without the patient’s valid consent. Records of the information given to the patient and of the treatment itself often have more bearing on these proceedings than the intervention alone.
The quality of the expert assessment is therefore central to the defense. We examine whether the expert has the appropriate specialism, applies the standard of care at the time of treatment and reaches conclusions that the records actually support. At the end of life, too, killing at a person’s request, assistance with a freely responsible decision to take one’s own life, and withdrawal of treatment in accordance with the patient’s wishes must be distinguished in law. In its judgment of 26 February 2020 – 2 BvR 2347/15 and others – the Federal Constitutional Court declared the former criminal prohibition on providing assisted suicide services void; killing at a person’s request remains an offense under § 216 StGB. This does not mean that every form of medical involvement is exempt from criminal liability. The person’s autonomous decision, control over the act, information provided and the particular conduct must each be examined carefully.
Corruption allegations in healthcare
Since 2016, §§ 299a and 299b StGB have criminalised accepting and giving bribes in healthcare. Section 299a StGB covers members of healthcare professions requiring state-regulated training who, in connection with their professional practice, demand, accept a promise of or accept a benefit for themselves or a third party in return for unfair preferential treatment in competition. It concerns prescriptions for medicinal products, therapeutic services, aids or medical devices; the purchase of medicinal products, aids or medical devices intended for direct use by the healthcare professional or their assistants; and the referral of patients or examination material. Section 299b StGB covers the corresponding offering, promising or granting of the benefit. Cooperation arrangements, referrals, consultancy agreements, non-interventional studies and invitations to professional training are not criminal merely because they have economic significance. What matters is the connection between the benefit and an unfair competitive preference.
In practice, investigations often target doctors, pharmacists, manufacturers and intermediaries at the same time. The defense must establish the specific agreement, its documentation and the customary arrangements in the relevant area of healthcare. It often emerges that services were appropriately remunerated and that no preferential treatment had been agreed. Professional rules issued by medical associations and the law on advertising medicinal products can also be relevant to the criminal assessment, but must not be equated with it.
Searches and seizures in a practice or hospital
A search of a medical practice, hospital department or private home generally requires a judicial warrant. Ask to see the warrant, note the officers’ names and request a list of the items taken. As a suspect, you are not obliged to assist with the search, disclose passwords or answer questions about the allegation. Call a defense lawyer before making any statement. Have your objection to the removal of documents and data carriers recorded and, where appropriate, seek judicial review of the seizure.
Patient records receive special protection. The prohibition on seizing medical records under § 97 of the German Code of Criminal Procedure (StPO) protects the relationship of trust with the patient; however, it does not apply without qualification where the suspicion is directed against the doctor personally. It is therefore particularly important that the measure remains within the scope of the warrant and that continued patient care is safeguarded. Subsequent amendments to records must not falsify their content; doing so would seriously complicate the defense. More detailed guidance is available on our page on searches.
With electronic patient data, the distinction between provisional securing, review under § 110 StPO and seizure is decisive. In its order of 27 January 2025, 12 Qs 60/24, the Regional Court of Nuremberg-Fürth held that provisionally mirroring a practice’s complete database for later review was permissible under the technical conditions of that case, because a targeted data export was not possible on site. By contrast, the seizure of the entire database was unlawful, because the records relevant to the proceedings had not first been reviewed and separated out. The defense therefore insists that the review actually takes place, remains within the suspicion set out in the warrant and that only the records remaining afterwards are seized.
Professional regulation and the licence to practice
Criminal proceedings, professional disciplinary proceedings and proceedings before the medical licensing authority are legally separate and apply different standards. Under § 6(1) no. 1 of the Federal Medical Practitioners’ Act (BÄO), the authority may suspend the licence to practice where criminal proceedings have been opened on suspicion of an offense that may demonstrate unworthiness or unreliability to practice medicine. If the required worthiness or reliability to practice medicine has subsequently ceased to exist, the licence must be revoked under section 5(2), first sentence, BÄO. The authority must assess whether those conditions are met in the individual case. Comparable rules apply to dentists, pharmacists and other healthcare professionals. For doctors treating patients covered by statutory health insurance, measures by the relevant authorization bodies and recovery claims by the Association of Statutory Health Insurance Physicians may arise as well.
The defense must consider these consequences from the outset. Statements to investigators, the licensing authority, professional association, Association of Statutory Health Insurance Physicians, professional indemnity insurer and funding bodies must be consistent. The form in which a case ends – for example, discontinuation subject to conditions, a penal order or a judgment – may also have different implications for professional proceedings. Before agreeing to any resolution, we therefore consider its potential effects outside the criminal case and involve medical law advisers where required.
What you can expect from us
We provide defense during the investigation, the intermediate proceedings before trial and the trial itself, assistance if you are summoned as a witness, and representation in administrative offense proceedings. We apply for access to the file, review the legality of searches and seizures, secure exculpatory documents, work with experts and coordinate communication with authorities, professional bodies and insurers. The aim is to establish the facts underlying the allegation and identify the professional consequences of a possible resolution at an early stage. We also advise hospitals and healthcare businesses on investigating suspected wrongdoing and on which individuals within the organization need their own defense lawyer.
Frequently asked questions
As a doctor, must I attend and give evidence if the police summon me?
As a suspect, you do not have to comply with a police summons or make a statement about the matter. A summons from the public prosecutor’s office or the court is different: you must attend, but your right to remain silent continues to apply. Obtain advice before any appointment.
How does the requirement to provide services personally affect an allegation of fraud?
Services provided within the statutory health insurance system are subject to the principle of personal performance; the applicable rules on substitution, employment and delegation must be observed. Where services are provided in breach of these rules but nevertheless billed, investigators often allege fraud. Whether that assessment is correct depends on the applicable rules, the authorization arrangements and the doctor’s knowledge.
Can prosecutors seize patient records?
Medical records may be protected against seizure where the conditions of section 97 StPO are met. In particular, this protection does not apply where specific facts give rise to a suspicion that the doctor participated in the offense. Patient records are therefore regularly taken in proceedings against doctors. The scope of the measure must be consistent with the search warrant.
Will a conviction automatically cost me my licence to practice?
No. The licensing authority decides on suspension or revocation in separate proceedings under §§ 6 and 5 BÄO. The nature and seriousness of the allegation, its connection with professional practice and the individual circumstances are decisive. Not every conviction results in loss of the licence, and not every investigation results in suspension.
When does accepting a bribe in healthcare become an offense under § 299a StGB?
Section 299a StGB covers members of healthcare professions requiring state-regulated training who, in connection with their professional practice, demand, accept a promise of or accept a benefit for themselves or a third party in return for unfair preferential treatment in competition. It concerns prescriptions for medicinal products, therapeutic services, aids or medical devices; the purchase of medicinal products, aids or medical devices intended for direct use by the healthcare professional or their assistants; and the referral of patients or examination material. An appropriately remunerated service without an agreement to grant preferential treatment does not meet these requirements.
Do you also represent patients against doctors?
No. We are criminal defense lawyers and represent doctors, healthcare professionals and those responsible for healthcare services. Patients seeking redress should consult a specialist lawyer for medical law.
Contact
If you are under investigation, a search has taken place, or you have received a letter from the public prosecutor’s office, a health insurer or the Association of Statutory Health Insurance Physicians, contact us before making a statement. You can reach our Nuremberg office by telephone on (+49) 911 999 396-0, by e-mail at kanzlei@rudolph-recht.de or through the contact page. In urgent cases, such as a search in progress, use the mobile number given on the defense counsel emergency call page.