Doctors working as fee-based physicians (Honorarärzte) in a hospital are generally not to be regarded as self-employed in this activity, but rather are subject to social security contributions as employees of the hospital (BSG, judgment of 4 June 2019 – B 12 R 11/18 R).
Background: Employment is non-self-employed work, in particular within an employment relationship. Indicators of employment include working according to instructions and integration into the work organisation of the party giving instructions (§ 7 Abs. 1 SGB IV).
On this point, the judges of the BSG further stated:
• In the case of work as a doctor, employment subject to social security contributions is not excluded from the outset on account of the particular quality of medical practice as a service of a "higher nature".
• The decisive factor is whether those concerned are bound by instructions or integrated into a work organisation.
• The latter is generally the case for doctors in a hospital, because a high degree of organisation prevails there, over which those concerned have no entrepreneurial influence of their own.
• Thus, anaesthetists – like the doctor in the leading case – are generally part of a team during an operation, which must work together in a division of labour under the direction of a person in charge. • Work as a ward doctor likewise generally requires those concerned to fit into the prescribed structures and processes.
In the leading case, the doctor repeatedly worked day and on-call shifts and was predominantly active in the operating theatre.
• In addition, fee-based doctors predominantly use the personnel and material resources of the hospital in their work. Here, the doctor was just as fully integrated into the operational workflow as doctors employed by the hospital.
• Entrepreneurial scope for decision-making is generally not present when working as a fee-based doctor in a hospital. The level of the fee is only one of many indicators to be considered in the overall assessment and is not decisive in the present case.
• Any shortage of skilled workers in the healthcare sector has no bearing on the legal assessment of whether insurance obligations apply. Social security regulations on insurance and contribution obligations cannot be set aside in order to enable an increase in the attractiveness of the profession through remuneration that is "relieved" of social security contributions and therefore higher.
Source: BSG, press release of 4 June 2019 (il)
Frequently asked questions
Frequently asked questions
Are freelance doctors working in hospitals subject to social security contributions?
Yes. Under the BSG ruling of 4 June 2019 (B 12 R 11/18 R), freelance doctors working in a hospital are generally classified as dependent employees and are therefore subject to mandatory social security contributions. Self-employed status applies only in atypical exceptional cases. The decisive factor is their integration into the hospital's work organisation.
Which criteria suggest dependent employment for fee-based physicians?
The decisive factors are integration into the hospital's work organisation and subjection to instructions (§ 7 Abs. 1 SGB IV). Fee-based physicians predominantly use the hospital's personnel and material resources and work within predefined structures in a division of labour — for example, as part of the surgical team or as a ward physician. They generally have no independent entrepreneurial scope for decision-making.
Does a physician's high qualification as a higher-level service preclude mandatory social insurance coverage?
No. The BSG clarifies that the special quality of medical practice does not automatically exclude employment subject to social insurance. The decisive factor is solely whether the physician works under instructions and is integrated into the work organization.
What role does the level of remuneration play in the status assessment?
The level of remuneration is merely one of many indicators within the overall assessment and is not decisive on its own. Even a fee significantly above the standard wage does not automatically lead to the assumption of self-employment if the other criteria point to integration into the company.
Does the skilled labor shortage in healthcare justify a different assessment?
No. The BSG has expressly ruled that a skilled labor shortage has no bearing on the legal assessment of mandatory social insurance coverage. Social security rules may not be suspended merely to make a profession more attractive through higher pay relieved of social security contributions.