Should doctors go on strike
Contract doctors are not allowed to strike
Federal Social Court confirms labor disputes for contract doctors
A general practitioner resident in Stuttgart informed the Association of Statutory Health Insurance Physicians (KVBV) in autumn 2012 that he and five other contract physicians were exercising "the constitutional right to strike for all professional groups". and will close his practice on November 21, 2012. The KVBV subsequently issued the doctor a reprimand as a disciplinary measure because he had culpably violated his contractual medical obligations by closing the practice.
The specialist complained against this. The social court called on dismissed the action on the grounds that the law of contracted physicians did not provide for the right to strike as a reason for an interruption in the practice. The doctor did not want to accept this judgment and went to the Federal Social Court in Kassel. He argued that doctors should not be placed in a worse position than other professional groups.
The lawsuit was unsuccessful. The federal judges ruled that the specialist had culpably violated his contractual medical duties. Contract physicians would have to be available during the indicated consultation hours for the care of their patients by a contract doctor (so-called presence requirement). Something different applies, for example, to illness or vacation, but not to participation in a warning strike.
The doctor has no right to strike protected by the constitution or the European Convention on Human Rights. A right of contract doctors to enforce claims against the statutory health insurances by way of industrial action is not compatible with the legal conception of contract doctor law (BSG, judgment of November 30, 2016, Az .: B 6 KA 38/15 R).
The remuneration of contract doctors is negotiated between health insurance companies and associations of statutory health insurance physicians. Conflicts about the amount of the total remuneration are not resolved through strikes or lockouts, but resolved through timely, binding decisions by arbitration boards. The legal concept of contract doctor law does not allow statutory health insurance physicians to close their practices for a strike during office hours. If there is a dispute about the arbitration award, its legality will be reviewed by independent courts.
Which doctors are allowed to strike for what and when?
In principle, all employed doctors can take part in a (lawful) strike if their working conditions are regulated by the collective agreement in question. Incidentally, this also applies to doctors who are not members of the union.
Doctors to whom the collective agreement does not apply (e.g. chief physicians), civil servants, board members and salaried doctors who are subject to the peace obligation (e.g. because they are bound by another collective agreement) are not allowed to strike.
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