What is compensatory jurisdiction

BSG, Decision from 10/11/2005 - File number B 6 KA 5/05 B



The procedure concerns drug recourse.

The plaintiff, a general practitioner with additional qualifications in naturopathic and psychotherapy, exceeded the average of the group of 99 general and general practitioners' practices - without x-rays and with sonography - by 87.5% or (weighted) 59.2%. The examination board therefore set a recourse against him amounting to 5% of his drug costs per treatment case. The complaint committee rejected the plaintiff's objection.

The plaintiff was unsuccessful in his lawsuit and appeal. In the judgment of the Landessozialgericht (LSG) it is stated that the implementation of a statistical comparison test is not objectionable. A supplementary case-by-case examination would only have been necessary in the case of relevant peculiarities of the practice's orientation or the group of patients, for which nothing is evident. A reason for deviating from the selected examination method does not result from the lower number of cases. The choice of the comparison group of general practitioners and general practitioners - without x-rays and with sonography - is also harmless. A refined - narrower - comparison group of doctors with naturopathic treatment did not have to be formed. An additional designation only requires a closer comparison group if the doctor concentrates his work so much on this special area that he no longer fully fulfills the primary care mandate. However, the plaintiff did not assert this. The high expenditure on pharmaceuticals cannot be explained solely by the use of natural medicine preparations, since prescribing them usually leads to lower costs. Rather, the plaintiff submitted that both conventional and naturopathic medicinal products should be prescribed. However, such a double form of treatment is uneconomical. The high level of effort cannot be explained by the nature of his group of patients. Only 31 of the 690 people insured with the AOK, HKK, TKK and DAK were cancer patients. The allergy patients, who caused increased drug costs in the case of oral desensitization, were not unusual in relation to the comparison group. A refined comparison group did not have to be formed because of the additional designation "psychotherapy" because there was no connection between this and the high drug expenditure. Practical peculiarities are also not apparent. The additional designations naturopathic and psychotherapy were not sufficient for this. These would not result in a special patient profile. The plaintiff has not proven an above-average number of diabetes patients. Compensatory savings are also not to be recognized. He has not proven that the additional expenditure on drugs is compensated for by fewer incapacity for work (AU) cases and fewer hospital admissions. For this he did not need the documents from his specialist colleagues that were refused to him, because other practices were not to be taken into account for the determination of the savings in his practice. The recourse did not skim off his entire above-average effort, but left him with an additional effort of 51%.

With his complaint against the non-admission of the appeal in the judgment of the LSG, the plaintiff asserts the fundamental importance of the legal case and procedural deficiencies.


The plaintiff's complaint is inadmissible. Your justification does not meet the requirements to be derived from Section 160a, Paragraph 2, Clause 3 of the Social Court Act (SGG).

As regards the fundamental importance of the case, the plaintiff raises the legal questions as to whether

- General practitioners who use naturopathic therapies with the whole group

of general practitioners and general practitioners can be compared and

- the additional prescription of naturopathic preparations in addition to such

orthodox medicine can be rated as a specialty in practice.

In order to assert the fundamental importance of a legal matter (reason for admission in accordance with Section 160 (2) No. 1SGG), a specific legal question must be clearly formulated in the grounds of the complaint in accordance with the explanatory requirements derived from Section 160a (2) sentence 3 SGG (cf. BVerfGE 91, 93, 107; BSG SozR 3-1500 § 160a No. 21 S 37 f) and to what extent this legal question is relevant to the decision (capable of clarification) and in need of clarification in the revision procedure aimed at with the complaint. It must be evident that the answer does not result from the legal provisions and / or previous case law, or, if there is already case law, that the question - e.g. with a view to relevant criticism in recent literature - needs to be discussed again (cf. BSG SozR 3-1500 § 160a No. 21 S 38; SozR 3-4100 § 111 No. 1 S 2 f; see also BSG SozR 3-2500 § 240 No. 33 S 151 f with further references). In cases in which a similar constellation is missing, but recognizable legality standards are affected, on which case law has already been made, at least one aspect must still be clarified in the revision procedure (see e.g. BSG SozR 3-1500 § 146 No. 2 S 6; SozR 3-2500 § 75 No. 8 S 34). It is necessary to deal with the lower court decisions and other relevant case law (see BVerfG> Chamber <, SozR 3-1500 § 160a No. 6 S 10 f; BSG SozR 3-1500 § 160a No. 21 S 38; No. 23 S 42). Merely general or only cursory references without penetrating the process material are not sufficient (cf. BVerfG> Kammer <, DVBl 1995, 35). These requirements are constitutionally unobjectionable (see the cited BVerfG-Rspr and eg BVerfG> Chamber <, SozR 3-1500 § 160a No. 7 S 14).

The statement of grounds does not meet these requirements. It is only asserted that the legal questions have not yet been decided by the highest court and that they cannot be clearly answered from the wording of the law or from the literature. That is not enough to deal with the lower court decisions and other relevant case law. It would be necessary to discuss the already existing case law of the Federal Social Court (BSG), which has repeatedly dealt with the criteria for the formation of comparison groups and for particularities in practice. The relevant judgments should have been processed, with the analysis of whether the answers to the legal questions raised here, especially those relating to naturopathic treatment, result from them or which aspects still need to be clarified in a revision procedure. A dispute does not even take place with those BSG judgments that the LSG has already mentioned in its judgment. In the grounds of the complaint, the plaintiff does not deal with his explanations of the fundamental importance (S 4 f) either with the lower court decision itself, which answers the two legal questions using the case law of the BSG. The statement of grounds was therefore limited to general information without penetrating the material in the process. That is not enough.

The procedural objections raised by the plaintiff are also inadmissible (reason for admission in accordance with Section 160 (2) No. 3SGG).

The complaint that the LSG did not fulfill its official investigation obligation by taking the view that the plaintiff had to prove his practical features himself (grounds of complaint p.6 below) is inadmissible because it is not related to an application for evidence. Because with the complaint of the violation of the official investigation obligation (§ 103SGG) a request for evidence has to be named according to § 160 para 2 no 3 clause 2 SGG in conjunction with § 160a para 2 sentence 3 SGG, which the LSG has not followed without sufficient reason. However, a request for evidence is not mentioned in this context (see Statement of Grounds, loc. Cit.).

In connection with the claimed compensatory savings due to fewer AU cases and fewer hospital admissions (grounds of complaint S 5 f), a request for evidence is named. With the statements that in the LSG proceedings the plaintiff, who was not represented by a lawyer, proposed the gathering of evidence in writing, it is stated that the LSG had to understand this as a request for evidence, but that it did not follow this without sufficient justification. It is explained that in its judgment the LSG only commented on the non-submission of documents from its specialist colleagues. However, he - the plaintiff - requested his personal statistics, which he no longer had at his disposal. The reasoning for the judgment (S 8) on the failure to collect evidence would therefore not do justice to his request for evidence (grounds of appeal, loc. Cit.).

However, this procedural complaint by the plaintiff is also inadmissible. However, it cannot be countered that he did not maintain his application for evidence on submission of his personal statistics in the appeal procedure until the end (on this requirement see e.g. BSG SozR 3-1500 § 160 No. 29 S 49; BSG SozR 4-1500 § 160 No. 1 No. 5 and 4 RdNr 5). Because only in the case of plaintiffs represented by a lawyer, it can generally be assumed that a request for evidence that is not submitted again at least as an alternative in the oral hearing will obviously no longer be pursued (see Krasney / Udsching, Handbuch des Sozialgerichtlichenverfahren, 4th Edition 2005, Section IX RdNr 130, 209 and the aforementioned BSG case law). This standard does not apply to those plaintiffs who - as here - have not been represented by a lawyer in the previous proceedings (s BSG SozR 4-1500 § 160 No. 1 No. 5).

However, there is no further requirement of sufficient explanations that or to what extent the appeal judgment can be "based" on the alleged procedural defect (Section 160 (2) No. 3 in conjunction with Section 160a (2) sentence 3 SGG). For the recognition of compensatory savings, as the plaintiff claims to have achieved through fewer AU cases and hospital admissions, it is necessary that (1.) the expenses in the claimed savings range were lower than the average of the specialist group and that (2.) stated It becomes that these savings were causally caused by the complained about additional expenditure (here: the additional expenditure on pharmaceuticals) (for the requirement of the causal relationship see e.g. BSG SozR 3-2500 § 106 No. 42 S 231 ff; No. 57 S 318). Even if compensatory savings were recognized for earlier or later quarters, explanations of the causal relationship were necessary for quarter II / 1998. In view of possible changes in the layout of the practice and in the composition of the patient population, it cannot be assumed that the situation will remain the same (for a separate assessment of each quarter s BSG SozR 4-2500 § 106 No. 1 RdNr 20). The plaintiff therefore not only had to prove savings for quarter II / 1998 in relation to the average of the specialist group, which could possibly have happened through the personal statistics he sought, but he also had to substantiate that these savings were due to the additional expenditure complained of (here: the additional drug expenditure) were causally related; for this he did not need the personal statistics. Even without this, he could or would have been able to show the typical diseases and the types of treatment he practices by evaluating his medical records based on the knowledge of his patient population, which he sees as the cause of savings in AU cases and hospital admissions. For this, a reference has or should only be made to documents of a general nature, as they have been submitted in administrative and lower court proceedings (see e.g. SG / LSG files Bl 10 ff, 49, 61 ff, 128 ff, 146 ff, 168 ff, 172 ff), cannot suffice. In addition, explanations with a special reference to his patient population and their disease structure would have been necessary. It cannot be inferred from the appeal judgment that he would have stated this; Nor does the reason for his appeal against revision for non-admission contain such statements. It has therefore not been conclusively demonstrated to a sufficient extent that the procedural deficiency complained of (the non-submission of personal statistics and the insofar problematic statements in LSG judgment S 8) could have been decisive for the judgment. This lacks the statement required in accordance with Section 160 (2) No. 3 in conjunction with Section 160a (2) sentence 3 SGG that the appeal judgment is "based" on the alleged procedural defect.

The Senate does not provide any further reasons in accordance with Section 160a, Paragraph 4, Clause 2, Clause 2 SGG. Regarding the submission dated October 5, 2004, it is pointed out that after the expiry of the reasoning period, a justification that has already been submitted and complies with the admissibility requirements can be supplemented and clarified, but new complaints can no longer be admissibly added (cf. B 6 KA 29/04 B - and Hennig in Hennig, SGG, § 160a RdNr 202 ff). Insofar as the subsequent submission could be taken into account, this has been done.

The decision on costs is based on the corresponding application of Section 193 (1) and (4) SGG (in the version that was valid until January 1, 2002 and is still applicable here).