By judgment of 22 August 2017 (case no. L 1 KR 394/15), the Hessian Higher Social Court ruled that a specialist in anaesthesiology working in the operating area of a hospital is in dependent employment and that, therefore, a position subject to social security contributions exists overall.
Background:
If, under social security law, "dependent employment" is present, then in social security terminology an "employment relationship subject to social security contributions" exists.
In the present case, a specialist in anaesthesiology (anaesthetist) worked for various hospitals in their anaesthesiology departments in the operating area. Remuneration was paid on an hourly basis. Following an application for a status determination (inquiry to the Deutsche Rentenversicherung as to whether social security liability exists), the Deutsche Rentenversicherung took the view that the anaesthetist performed dependent employment and that, accordingly, mandatory insurance applied in the pension insurance scheme as well as under unemployment insurance law (i.e. overall an employment relationship subject to social security contributions).
The physician challenged this decision before the Higher Social Court of Hesse, as he was of the opinion that he was not subject to social security contributions. He argued that he was not in dependent employment, as he did not take part in meetings of the OR team and was free to choose the operating room himself: a contract-physician activity was provided for by law, and rejecting self-employed activity would, overall, amount to a significant restriction on the free professional practice of physicians.
Decision of the Higher Social Court of Hesse:
After the lower court had already confirmed the position of the pension insurance authority, the Higher Social Court has now also followed the decision of the previous instance.
The court argued that the anaesthetist was indeed in dependent employment, as he was integrated into various work organisations: he used the hospital's equipment and could not have performed his activity without these working instruments of the hospital. In addition, it was specifically agreed with the hospital on which wards and in which shifts the physician was to work within the framework of the operational structure organised by the hospital. Furthermore, he was part of a hospital team consisting of nursing staff and other physicians, and he received a firmly agreed hourly wage. Overall, the Higher Social Court could not identify any entrepreneurial risk borne by the anaesthetist. He was also unable to rely on the exemption rule for emergency physicians in rescue teams (whose activity is classified as not subject to contributions).
It should also be noted that the Hessian Higher Social Court had already ruled in other judgments that an operating-room nurse and also a nursing assistant in a retirement home are likewise in dependent employment.
Frequently asked questions
Frequently asked questions
Is a freelance physician (anaesthetist) working in a hospital subject to social security contributions?
Yes. According to the ruling of the Hessisches Landessozialgericht of 22 August 2017 (Az. L 1 KR 394/15), a specialist in anaesthesiology working in the operating theatre of a hospital is generally considered to be in dependent employment and is therefore subject to social security contributions. This results in mandatory insurance in the statutory pension scheme and under unemployment insurance law.
Which criteria indicate dependent employment of a hospital physician?
Key criteria include integration into the hospital's work organization, use of hospital equipment without own operating resources, inclusion in ward and shift schedules, and working in a team with nursing staff and other physicians. A fixed hourly wage and the absence of entrepreneurial risk also indicate dependent employment.
What is a status determination procedure at the Deutsche Rentenversicherung?
In the status determination procedure, the Deutsche Rentenversicherung (German Statutory Pension Insurance) reviews upon request whether an activity qualifies as self-employment or as dependent employment. If dependent employment is determined, social security contributions are mandatory. The procedure provides legal certainty for both principals and contractors.
Does the freedom to choose the operating room exempt a fee-based physician from mandatory social insurance?
No. Even if a physician does not attend team meetings and is free to choose the operating room, this is not sufficient to establish self-employed status. The decisive factor is the overall assessment, in particular the integration into hospital operations and the absence of entrepreneurial risk.
Does the exemption for emergency physicians also apply to anesthesiologists in hospital operating rooms?
No. The exemption under which emergency physicians working on a rescue team are not subject to social security contributions cannot be transferred to anesthesiologists in a hospital's operating room. These professionals are regularly considered dependent employees and are therefore subject to mandatory social security contributions.