A brief overview of regulations and case law regarding the fee paid by a doctor practicing in a private healthcare establishment

Self-employed doctors practicing in private clinics must pay back to the establishment a portion of their fees in return for the services provided to them to enable the exercise of their medical activity, qualified as a "fee".

This principle is thus established by Article R162-26 of the Social Security Code according to which: "Hospitalization and liability tariffs must take into account the fact that part of the professional fees of practitioners and medical auxiliaries normally covered by fees is borne by the establishment, in particular through the provision of staff, premises and equipment."

This principle is however limited by the prohibition for a doctor to share his liberal fee ("comperage") with any other natural or legal person, including with a doctor who does not practice in a group, which would lead to an illegal agreement undermining the doctor's independence and the patient's freedom of choice. (art. L. 4113-5 of the Public Health Code and article 23 of the Medical Code of Ethics)

The Court of Cassation admitted that the fee could be calculated based on the fees paid by patients (Cass., ass. plén., May 28, 1976, Clinique du Lac Léman, No. 75-10371) provided that it corresponds exclusively, by its nature and cost, to the value of the service rendered to the practitioner. (Civ. 1re, Nov. 5, 1996, Polyclinique Le Languedoc and Cass., Civ, Nov. 21, 2006, Clinique Stella, No. 05-12652).

In other words, case law allows the payment of a fee proportional to the amount of fees collected by the doctor, provided that it corresponds to the exact cost of the services rendered. This is not without causing application difficulties, given that the judge has discretionary power over the fee rates contractually agreed between the parties and the valuation of the services rendered.

To assess the amount of the fee, case law and doctrine hold that the calculation basis must take into account several types of services, ranging from the provision of the consultation office and associated services (water, electricity, …), to the management of billing and collection of the doctor's fees, the provision of staff (assisting the doctor), or even the provision of small equipment or consumables.

The parties may validly agree on a flat-rate assessment, either in the form of a single royalty rate, which is often the solution chosen by clinics, or in the form of a fixed sum, the essential point being that this assessment does not deviate disproportionately from the actual cost. (CA de Douai Ch.1 section 2 – SA Polyclinique du Bois March 29, 2005)

There is thus a great diversity between the royalty rates, which for the most part range between 5 and 20% of the fees received by the physician for obstetrics surgery medicine activities, but can rise to 70-80% for activities such as radiotherapy and radiology, which is explained by the significant investments borne by the clinic for these activities.

The variation in royalty rates between liberal practitioners practicing different specialties within the same clinic is justified, and the Court of Cassation even considered that a single royalty rate applied to all practitioners in the same clinic would not allow taking into account the services actually rendered to each specialty. (Cass. Civil Chamber 1, March 15, 2017, 16-12.333)

It should be noted that according to tax case law, the absence of fee collection by the clinic constitutes an abnormal management act (CAA de DOUAI ch. 3, 2 November 2005, SA Clinique des Essarts).

Challenging the royalty can have significant economic consequences for the parties.

To limit litigation, the legal professional can only advise doctors and clinics to review the services actually rendered and, if necessary, periodically revise the amount of the fee, by decreasing or increasing it.

Cette discussion peut s’avérer délicate et à défaut d’accord dans un cadre contractuel, le médecin ou la clinique peuvent saisir le juge civil pour voir prononcer la nullité de la clause de redevance, voire du contrat dans son intégralité si ladite clause en a constitué une condition déterminante, soit, a minima fixer le montant de la redevance, ouvrant droit à restitution d’une partie des sommes versées, par l’une ou l’autre des parties.

 

Health Law