Physicians

Pharmacists

Healthcare facilities

Lawyer for medical criminal law in Munich

Criminal Defense and Consultation in Medical Criminal Law

As a Munich-based law firm specializing in medical criminal law, schirach.law advises and defends clients facing criminal charges related to medical treatment, billing, prescriptions, healthcare collaborations, and pharmaceuticals and medical devices. We represent physicians, dentists, pharmacists, other healthcare professionals, managing directors, and other healthcare professionals. We also advise hospitals, medical care centers, pharmaceutical companies, and other healthcare-related businesses.

This practice area focuses in particular on preliminary investigations into billing fraud, allegations of corruption, criminal charges arising from medical malpractice, and proceedings under pharmaceutical and medical device law. Pharmaceutical criminal law also constitutes an important part of medical criminal law.

From its Munich office, schirach.law provides legal advice and representation nationwide.

What is medical criminal law?

Medical criminal law covers criminal offenses and administrative offenses related to medical treatment, the organization of the healthcare system, and the manufacture, prescription, dispensing, or marketing of drugs and medical devices.

Unlike a single, unified law, medical criminal law is composed of numerous areas of law. In addition to the Criminal Code, social law, pharmaceutical law, medical device law, professional law, and, to some extent, criminal tax law are particularly relevant.

Typical criminal charges include:

• Accounting fraud (Section 263 of the German Criminal Code),
• Bribery and Corrupt Practices in the Healthcare Sector (Sections 299a, 299b of the German Criminal Code (StGB)),
• Assault (Section 223 of the German Criminal Code),
• negligent infliction of bodily injury (Section 229 of the German Criminal Code),
• negligent homicide (Section 222 of the German Criminal Code),
• Embezzlement (Section 266 of the German Criminal Code),
• Violation of privacy (§ 203 StGB),
• criminal violations of the Medicines Act,
• criminal violations of medical device law, as well as
• Violations related to medical cannabis.

However, not every medical, organizational, or billing error automatically constitutes a criminal offense. Rather, the specific facts of the case, the actual sequence of events, and whether there was intent or negligence are the decisive factors.

For whom is a lawyer specializing in medical criminal law relevant?

Medical criminal law does not apply only to doctors.

Criminal liability risks may arise in particular for:

• Physicians and dentists,
• Pharmacist,
• Psychotherapists,
• Nurses and other healthcare professionals,
• Managing Director and Medical Director of MVZ,
• Clinic and hospital administrators,
• Practice managers and billing coordinators,
• Pharmaceutical companies and their employees,
• Medical device companies, as well as
• Other companies and decision-makers in the healthcare industry.

Proceedings against members of the healthcare professions are particularly sensitive because, in addition to criminal penalties, there may be other consequences. These include disciplinary proceedings, consequences under the law governing contract physicians, claims for recourse, and financial and reputational repercussions.

Billing Fraud in Medical Criminal Law

Allegations of billing fraud are among the key categories of cases in medical criminal law.

The starting point under criminal law is generally Section 263 of the German Criminal Code (StGB). However, an accounting error alone does not constitute fraud. Rather, all objective and subjective elements of Section 263 StGB must be present, in particular intentional conduct and the intent to secure an unlawful financial advantage for oneself or a third party.

Investigations may be launched, for example, if there is suspicion that

• services that were not provided were billed,
• Services were billed under an incorrect fee code,
• the provision of personal services was merely feigned,
• rules regarding representation or delegation were violated,
• The billing requirements were not met,
• services for which there was no medical indication were billed, or
• Billing systems were systematically organized in a flawed manner.

Investigative authorities can calculate substantial amounts of damages, especially when the billing periods are lengthy. For this reason, reviewing the calculation method is one of the defense’s key tasks.

Equally important is the question of whether the actions were in fact intentional or whether they stemmed from organizational, documentation, or interpretation issues.

Search Warrant for Billing Fraud—What Should You Do?

A search of a doctor's office, medical care center, pharmacy, or business premises is a typical escalation in medical criminal law.

Those involved should not resist. At the same time, however, they should generally not make any statements regarding the allegations without first consulting a criminal defense attorney.

First and foremost, it is important to review the search warrant and the specific charges. In addition, a record should be kept of which rooms were searched and which documents, data storage media, or devices were seized or confiscated.

In the medical field in particular, databases regularly contain sensitive patient information. For this reason, searches and seizures can raise additional issues related to criminal procedure and data protection law.

Once the situation has been initially stabilized, the defense should request access to the case files as soon as possible and then reconstruct the actual billing procedures.

Medical criminal law: When does a treatment error become a criminal offense?

In medical criminal law, the main question in cases of medical malpractice is whether the medical action constitutes negligent bodily harm or negligent homicide. However, not every instance of medical malpractice is a criminal offense.

However, criminal investigations may be conducted, in particular, for negligent bodily injury under Section 229 of the German Criminal Code (StGB) or, in the event of a fatal outcome, for negligent homicide under Section 222 of the German Criminal Code (StGB).

Section 229 of the German Criminal Code (StGB) provides for imprisonment for up to three years or a fine. In cases of negligent homicide, the statutory penalty range under Section 222 of the German Criminal Code (StGB) is imprisonment for up to five years or a fine.

For the defense, the key issue is whether there was in fact an objective breach of the duty of care and whether it was precisely this breach that caused the resulting harm to health.

For this reason, the medical facts and issues of causation under criminal law must be examined separately and with precision.

Treatment records and medical expert opinions may take on particular significance in this context.

Information, Consent, and Bodily Injury

Medical procedures often constitute bodily injury. The patient’s valid consent is therefore of central importance to their legality.

Section 630d of the German Civil Code (BGB) generally requires the treating physician to obtain the patient’s consent before performing a medical procedure. For such consent to be valid, proper informed consent must generally be provided. Section 630e of the BGB describes the essential requirements for this informed consent.

In criminal proceedings, the following questions, in particular, may therefore be decisive:

• Was the patient given sufficient information?
• Was the investigation conducted in a timely manner?
• What treatment options were available?
• Was the patient capable of giving consent?
• Was consent validly given?
• Has a risk subject to disclosure requirements just materialized?

However, civil liability and criminal liability are not the same. Therefore, the criminal charge must be examined separately.

Corruption in the Healthcare Sector: Sections 299a and 299b of the German Criminal Code (StGB)

Collaborations between doctors, pharmacies, hospitals, laboratories, pharmaceutical companies, and other market participants can give rise to criminal liability risks.

Section 299a of the German Criminal Code (StGB) governs the acceptance of bribes in the healthcare sector. Section 299b of the German Criminal Code (StGB) correspondingly governs the offering of bribes in the healthcare sector.

Both provisions concern certain benefits provided in exchange for unfair preferential treatment in competition, particularly in connection with prescriptions, certain procurement transactions, or the referral of patients or test specimens.

However, not every collaboration and not every form of compensation is a criminal offense.

Critical factors may include, for example:

• Referral and collaboration models,
• Consultant and speaker fees,
• Investment models,
• Discounts and other financial benefits,
• Equipment or in-kind contributions,
• Professional development opportunities, as well as
• Collaborations between doctors and companies.

Prohibitions under social security law may also be relevant to the assessment. For example, Section 128 of SGB V contains provisions regarding impermissible collaboration between service providers and contract physicians.

However, for the purposes of criminal assessment, the specific facts of the case must always be examined. Conduct that is problematic under professional or social law does not automatically constitute a criminal offense under Sections 299a or 299b of the German Criminal Code (StGB).

Pharmaceutical Criminal Law – Criminal Liability Risks for Pharmaceutical Companies and Their Officials

Pharmaceutical criminal law addresses criminal and administrative penalty risks associated with the development, manufacture, import, distribution, dispensing, and marketing of drugs.

This may affect pharmaceutical companies, executives, responsible employees, pharmacists, physicians, and other parties involved in the supply and distribution chain.

The German Medicines Act ( AMG ) contains its own criminal provisions. In particular, Sections 95 and 96 of the AMG cover various violations of pharmaceutical regulations.

Criminal liability risks may arise, for example, in the following situations:

• Manufacture or import without the required permit,
• Dealing with questionable or counterfeit medicines,
• unauthorized dispensing of prescription drugs,
• Violations of distribution and sales regulations,
• false or misleading information, as well as
• Circumstances that give rise to allegations of both corruption and fraud.

As a result, pharmaceutical criminal law often overlaps with white-collar criminal law and medical criminal law.

Medical Cannabis and Criminal Law

Since the Cannabis Act took effect in 2024, medical cannabis has been subject to its own legal framework.

The Medical Cannabis Act (MedCanG) contains, in particular, provisions regarding prescriptions, dispensing, permits, imports, and exports, as well as specific criminal offenses and administrative fines.

Section 25 of the MedCanG covers, among other things, certain violations related to the prescription, dispensing, importation, exportation, and other distribution of cannabis for medical or medical-scientific purposes.

It is therefore crucial for doctors, pharmacists, and companies to base their actions on the current legal situation. The previous blanket classification of medical cannabis solely under narcotics law no longer fully reflects the legal situation in effect since 2024.

Medical Devices and Criminal Law Governing Medical Devices

Violations of regulations governing medical devices may also result in criminal penalties or fines.

The Medical Device Law Implementation Act (MPDG) supplements the directly applicable European regulations for medical devices and in vitro diagnostic devices.

Sections 92 and 93 of the MPDG contain separate criminal provisions. Among other things, they address certain violations related to the placing on the market, operation, or use of products, as well as violations involving counterfeit products and clinical trials.

Criminal law governing medical devices may affect, in particular, manufacturers, importers, distributors, operators, medical facilities, and responsible persons.

Because many criminal offenses refer to regulatory provisions, the defense must first determine precisely which specific product regulation the defendant is alleged to have violated.

Medical Confidentiality and Section 203 of the German Criminal Code (StGB)

Patient data is subject to special protection.

Section 203 of the German Criminal Code (StGB) makes it a criminal offense for physicians and other professionals bound by professional confidentiality to disclose certain confidential information belonging to others without authorization.

Criminal law issues may arise, for example, when patient data is disclosed to external service providers, other companies, or other third parties.

However, not every instance of processing or disclosure of medical information constitutes a criminal offense. Rather, it depends on whether there is authorization for disclosure and which individuals are involved in the respective work or service process.

A Summons in Medical Criminal Law—Should You Testify or Remain Silent?

Defendants are not required to incriminate themselves.

Anyone who receives a police summons as a suspect should therefore first have the specific allegation reviewed and, as a general rule, wait until they have been granted access to the case file before deciding whether to make a statement.

Making an early statement without reviewing the investigative file can complicate the defense. This is especially true in cases involving complex medical and billing issues.

The situation may be different if you are summoned to appear as a witness. However, witnesses may also face their own criminal risks and, under certain circumstances, have the right to refuse to provide information or to refuse to testify.

Therefore, the specific procedural role should be clarified first.

Defense in Medical Criminal Law Investigations

A strong defense begins with reconstructing the actual facts of the case.

In medical criminal law, criminal, medical, and regulatory issues often must be assessed simultaneously. The investigative file serves as the starting point in this process, but it does not automatically answer all technical questions.

Depending on the proceedings, the defense strategy typically includes the following steps:

• Review of the case files and analysis of the specific charges,
• Reconstruction of medical or billing-related processes,
• Examination of the subjective element of the offense,
• Analysis of treatment and billing records,
• Review of damage calculations,
• Analysis of medical expert reports,
• Clarification of personal responsibilities,
• Review of criminal procedural measures, as well as
• Strategic decision regarding the timing and content of a statement.

In the case of companies and larger medical facilities, it must also be determined which person was actually responsible for the procedure in question and what information was available to that person.

Consider Criminal and Professional Disciplinary Consequences Separately

A medical-criminal investigation may have consequences that extend beyond the criminal proceedings.

Depending on the professional group and the specific circumstances, there may also be consequences under professional law, the law governing contract physicians, licensing law, or economic law.

These may include, for example:

• professional disciplinary proceedings,
• Measures related to medical licensure or professional authorization,
• Consequences under the law governing physicians under contract,
• Claims for recourse and restitution,
• Forfeiture decisions,
• consequences under labor or corporate law, as well as
• significant reputational risks.

However, these consequences do not occur automatically. For this reason, potential ancillary proceedings and resulting effects should be taken into account early on in the criminal defense strategy.

Preventive Counseling and Compliance in the Healthcare Sector

Criminal law advice does not begin only when a preliminary investigation is underway.

Particularly when it comes to complex cooperation, billing, and compensation models, a preventive audit can help identify criminal liability risks at an early stage.

Relevant areas include, in particular:

• Cooperation and referral models,
• Billing processes,
• Compensation agreements,
• Collaboration with pharmaceutical and medical device companies,
• internal approval processes,
• Handling of patient data,
• Sponsorship and professional development events, as well as
• Internal investigations in cases of suspected misconduct.

Compliance should not merely be about formulating abstract rules. What matters most is whether responsibilities, audit trails, and documentation actually function within the real-world workflow.

Interfaces with White-Collar Crime Law and Criminal Tax Law

Investigations under medical criminal law often overlap with other areas of criminal law.

Accounting and corporate matters can, for example, raise issues of white-collar crime.

In cases involving tax consequences or tax arrangements that raise tax issues, criminal tax law may also come into play.

Cash flows and asset movements may also raise issues under criminal money laundering laws.

For this reason, a complex set of facts should not be assessed in isolation based on a single element of the offense.

Medical and Pharmaceutical Criminal Law in Munich and Nationwide

schirach.law provides legal advice and representation in medical and pharmaceutical criminal law nationwide from its Munich office.

Attorney Marco Benedikt von Schirach has been admitted to the bar since 2008 and has been a certified specialist in criminal law since 2011. He is also a certified defense attorney for white-collar crime and criminal tax law (DSV e.V.).

For more information, see Marco Benedikt von Schirach's profile.

For medical, pharmaceutical, or other specialized issues, additional specialized consultants and experts may be required, depending on the specific procedure.

Frequently Asked Questions About Medical Criminal Law

When should I consult a medical malpractice attorney?

As early as possible, if there is concrete suspicion of a criminal offense. This applies in particular in the event of a search, a subpoena, a seizure, or a notice to appear, as well as in cases of indications of potential billing irregularities, corruption, or medical malpractice.

Is every medical billing error considered billing fraud?

No. An accounting error does not automatically constitute a violation of Section 263 of the German Criminal Code (StGB). For fraud to be established, all objective and subjective elements of the offense must be present. In particular, intentional conduct is required.

Is every case of medical malpractice a criminal offense?

No. A medical error does not automatically result in criminal liability. For a charge of negligent bodily injury or manslaughter, it must be proven, in particular, that there was a breach of the duty of care relevant under criminal law and that this breach was the cause of the resulting harm.

What should I do if my doctor's office is searched?

Do not resist, and under no circumstances make any statements regarding the allegations against you without first consulting a lawyer. Contact a criminal defense attorney as soon as possible and have the search warrant, as well as the seizure or confiscation of documents and data, reviewed.

Do I have to comply with a police summons as a suspect?

As a general rule, you are not required to comply with a simple police summons as a suspect. Before making a statement, you should generally first review the case file and then decide on a defense strategy.

When does corruption occur in the healthcare sector?

Sections 299a and 299b of the German Criminal Code (StGB) cover certain benefits agreed upon in exchange for unfair preferential treatment in competition. Therefore, not every form of cooperation, gift, or payment in the healthcare sector is automatically a criminal offense.

What does pharmaceutical criminal law cover?

Pharmaceutical criminal law covers criminal and administrative penalty risks related to pharmaceuticals. These include, in particular, manufacturing, importing, distributing, dispensing, and marketing, as well as potential overlaps with fraud and corruption.

What are the criminal liability risks associated with medical devices?

The MPDG contains its own provisions regarding criminal penalties and administrative fines. Risks may arise, among other things, in connection with the placing on the market, operation, or use of certain products, with counterfeit medical devices, and with clinical trials.

Does the Narcotics Act still apply to medical cannabis?

Since April 1, 2024, the Medical Cannabis Act has governed key aspects of the distribution of cannabis for medical and medical-scientific purposes. It also contains its own provisions regarding criminal penalties and administrative fines. However, the specific classification depends on the particular product and the circumstances of each case.

Confidential Contact

Investigations under medical criminal law can have significant professional and financial consequences in addition to the criminal proceedings. For this reason, those involved should clarify the status of the proceedings as early as possible.

This applies in particular to searches, subpoenas, audits of financial records, allegations of corruption, allegations of medical malpractice, and investigations involving pharmaceutical or medical device law.

schirach.law provides legal counsel and representation in medical and pharmaceutical criminal law in Munich and throughout Germany.

Theatinerstraße 40–42 VII
80333 Munich

Phone: +49 89 443 695 60
Email: kanzlei@schirach.law