On 25 November 2015, the 3rd Division of the Federal Social Court ruled that contracts tendered by AOK Hessen with individual pharmacies regarding the direct supply of oncology practices with cytostatic agents for direct use in medical treatment qualify as exclusive. This excludes the remaining pharmacies from supply.
After the selective contracts tendered by AOK Hessen had taken effect, one pharmacist continued to supply a group oncology practice located in the same building with cytostatic agents. The pharmacist justified his actions using a written patient declaration made vis-à-vis the treating physicians, according to which the patients specifically requested to be supplied by his pharmacy. As a result they would have been exercising their right to choose a pharmacy, which also applies to the special case of directly supplying oncology practices with cytostatic agents. The pharmacist bringing the action won the first-instance proceedings before Darmstadt Social Court.
The Federal Social Court overturned the lower court’s judgment and fully upheld the leap-frog appeal filed by Gleiss Lutz on behalf of AOK Hessen, ruling that the contracts publicly tendered by the statutory health insurance fund were exclusive in accordance with section 129(5), sentence 3 German Social Security Code, Book V. Otherwise it would be impossible to achieve the price advantages envisaged by the legislator, because contracting partners are only able to calculate using higher quantities and offer lower prices where they have been authorised as exclusive suppliers. In its decision, the Federal Social Court rejected the right to choose a pharmacy specifically for the direct supply of physicians’ practices with cytostatic agents, which are toxic and spoil easily and therefore should not be handed out to patients.
The court’s decision is of fundamental importance for the supply of parenteral oncology preparations and the future supply structure. In Hesse, numerous pharmacists had cited the patients’ right to choose a pharmacy and continued to supply oncology practices with medication at significantly higher prices. Many pharmacies had already terminated their selective contracts for cause as a result. The Federal Social Court’s ruling will reverse this trend, contributing to a considerable increase in price competition among pharmacies and a more efficient supply of cytostatic agents.
Dr. Reimar Buchner (Partner) and Dr. Enno Burk (both healthcare, Berlin) represented AOK Hessen in the leap-frog appeal as well as in the lower court proceedings.
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