The fee paid to a clinic: what conditions?

In line with the news of April 30, 2018, it is interesting to revisit the ruling of the Court of Cassation of March 15, 2017 (No. 16-12.333) concerning the calculation of the fee paid by a doctor in return for services provided by the clinic, under a practice agreement.

According to this ruling, a clinic had entered into practice agreements with several doctors of various specialties, allowing them to practice their art within the clinic.

Challenging the increase in the royalty rate decided by the clinic, radiologists and surgeons practicing within this clinic requested a judicial expert assessment to determine whether the contractual royalties corresponded to the management or operating costs actually borne by the clinic for their activities.

On January 31, 2000, the appointed judicial expert concluded that the clinic's charges were limited to administrative services of billing, accounting, cash management and recovery and thus represented only 2.49% of the fees for surgeons.

Based on this report, practitioners from other specialties (anesthesiologists-resuscitators, ENT specialists, ophthalmologists, psychiatrists, cardiologists, gynecologist-obstetricians, pulmonologists, etc.) who paid a fee to the clinic at a rate between 10% and 70% then summoned the clinic before the civil court of first instance of Papeete, with a view to obtaining a reduction in their fee rate to 3% and an order for the clinic to reimburse them for the overpayment.

Thus, the Court of First Instance of Papeete and the Court of Appeal of Papeete, in several judgments of 15 November 2015, considered that the clinic could not receive a percentage of fees not corresponding to the reality of the expenses incurred and set the royalty rate at 3% for all practitioners, in application of the expert report of 31 January 2000.

The clinic filed several appeals against the confirmatory rulings of the Papeete Court of Appeal.

The commented decision of March 15, 2017 (n°16-12.333) concerns one of these practitioners, a cardiologist, bound by a liberal practice contract with the clinic which provided for a monthly fee equal to 10% of the amount of fees.

The Supreme Court overturned the decision rendered by the Court of Appeal of Papeete on the grounds that it had not provided reasons for its decision and had not explained "in what way the services provided by the clinic[to a cardiologist]were similar to those provided to other surgeons." (Cass. Civil Chamber 1, March 15, 2017, 16-12.333)

By this ruling, the Court of Cassation recalls the principle that it is always incumbent on the trial judges seized of a request for restitution of royalties to ascertain whether the sums received are the exact counterpart of the services rendered.

In the context of this cassation judgment, the Court of Appeal is ultimately criticized for having applied the conclusions of a report that concerned radiologists and surgeons, i.e., practitioners of a different specialty from the cardiologist opposed to the clinic.

This case law follows in the direct line of previous decisions of the Court of Cassation, according to which it is for the judge to seek exact equality between the agreed flat-rate fee and the amount of the charges it represents, which was not the case here since the report of January 31, 2000 concerned doctors of other specialties, acting within the framework of a separate procedure (see in this sense civ. November 5, 1996 n°94-18.335 and November 21, 2006 n°05-12.652).

In conclusion, the fee paid to a clinic must correspond to the services strictly provided to doctors according to their specialty.

Health Law