In every discussion I’ve had with Germans about my comparative research of medical malpractice in the United States and Germany, I have been given a preliminary lecture about the strong social security system in Germany. As a society, Germans view healthcare as a right, not a privilege. This idea transcends political and socioeconomic associations. In our meeting, Dr. Günther Jonitz, President of the Berlin Chamber of Physicians, called social care and healthcare, “the soft-tissue of German society.”

Germany’s system of social insurance dates back to 1881 and is often referred to as the Bismark Model, named for its then Chancellor, Otto von Bismark. Although the system has undergone many changes and continues to evolve, this basic model, based upon the principle of social solidarity, survives today. Regular surveys confirm that Germans continue to believe that insuring against the risk of illness is an issue of social solidarity rather than individual responsibility.[1]

Ninety percent of Germany’s population is covered under its statutory health insurance scheme. Income-based member contributions, “contribute[] toward social equality by enacting a redistribution of resources from high income members to low income members.” Unlike the United Kingdom’s single-payer system, Germany’s multi-payer system allows health insurers and healthcare providers, “a certain level of independence from the state.”[2]

The German healthcare system is neither state-run or organized along purely market-oriented lines. Despite containing several elements of competition, it is not controlled by the mechanisms of supply and demand. In key areas, such as outpatient medical care or the hospital sector, market access and pricing are strictly regulated.[3]

Despite, or perhaps because of, strict regulations on access and pricing, Germany spends only $4,218 US dollars per person on healthcare, just over half of the U.S.’s $7,960 per capita expenditure. In terms of quality, “[t]he German healthcare system regularly emerges as one of the best in Europe in international comparisons based on information from patients as well as morbidity and mortality data.”[4]

The statutory health insurance program is financed by a Health Fund funded primarily by insured contributions with some contribution from public taxes. In 2011, the uniform contribution rate was 15.5% of gross income, not counting any income exceeding 3,713 euro per month. Of the 15.5%, employees paid 8.2% and employers paid 7.3%. Participation in statutory health insurance is mandatory for all employees with a gross income less than 49,500 euro (2011 calculation).  Employees whose income exceeds this limit (approx. 10% of the population) can choose to enroll in statutory insurance or private insurance. Statutory health insurance members have a right to choose both their health insurance provider and healthcare provider, and health insurance companies have a legal obligation to provide insurance when it is requested. In order to distribute risk evenly among health insurers, “health insurance funds with a higher proportion of sick members receive more money [from the Health Fund] than those with many healthy members. If the money provided by the Health Fund is not sufficient to cover the outgoings of a health insurance fund then it is permitted to charge an additional premium.” Tax subsidies are available for those charged an additional premium exceeding 2% of their income.[5]

Statutory health insurance benefits include medical care for the prevention and early detection of disease, medical care for the treatment of disease, and medical care for rehabilitation. Despite varying contributions by members of different income levels, all members of the statutory health insurance program receive the same benefits.[6]

The solidarity principle implies that every insured person, regardless of their income, size of contributions or health risks, is able to receive any treatment which is medically necessary under statutory health insurance. All insured persons have equal entitlement to health services. The scope of medical services is limited only by the requirement that they must be ‘sufficient, appropriate and cost-effective’, and may not exceed that which is proportional to needs.[7]

The German social insurance system protects its population from more than the financial consequences of illness. In addition to statutory health insurance, the system encompasses statutory long-term care insurance, statutory accident insurance, statutory pension insurance, and statutory unemployment insurance.[8]

Why am I always given a lecture on Germany’s social security system before discussing the details of medical malpractice in Germany? Well, there are many reasons, but here are a few that keep coming up:

  1. Germans aren’t using emergency rooms as primary care providers. Because healthcare is viewed as a matter of human dignity, Germans can meet their basic healthcare needs at a general practitioner’s office without worrying about how they will pay for the doctor. This basic access to healthcare not only decreases the traffic in emergency rooms, a popular target for medical malpractice, it also decreases the number of patients treated for conditions that could have been prevented or managed with access to general care.
  1. Germans don’t need to file medical malpractice lawsuits to pay for their past and future medical care, home care, or rehabilitation or to receive compensation for past or future lost wages.
  1. The cost of healthcare in Germany is a fraction of what it is in the United States.
  1. Because of #2 and #3, medical providers and their insurers are not faced with exorbitant awards for future medical costs, life care plans, and lost wages.

While the difference in healthcare systems is just one part of this comparative analysis, it touches upon all three elements of my research: prevention, resolution, and litigation. When societal differences begin to frustrate my research, my host, Dr. Jörg Fedtke, reminds me that because of the fluid nature of society and its many influences, “[t]he culture of a legal system is by its very nature a moving target. The exercise is nevertheless worth the effort.”[9] Ultimately, healthcare is complicated, and it is essential to understand the basic motivations and workings of the German healthcare system before workable solutions emerge.

[1] Deutscher Ärzte-Verlag, The Healthcare System in Germany – A Short Introduction 1 (2012).

[2] Id. at 3-8.

[3] Id. at 8.

[4] Id. at 8-9.

[5] Id. at 11-15.

[6] Id. at 12.

[7] Id. at 12.

[8] Id. at 11.

[9] J. Fedtke, The Culture of German Tort Law (2012) 3 JETL 183, 185.

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