Pharmacists can be punished for fraud if they use a cheaper version instead of prescribed drugs, the court ruled in a verdict announced on tuesday. The judges overturned the acquittal of a pharmacist from bavaria (1 str 534/11).
The defendant from odelzhausen near munich had produced an infusion solution for cancer therapy. He had used a product that is only approved in other countries but contains exactly the same active ingredients as the comparable product for the german market. Because he bought the drug abroad at a lower price, he saved more than 58,500 euros – but charged health insurers the full price. The regional court in munich acquitted the pharmacist last year.
The federal supreme court overturned the acquittal and remanded the case. A drug that is subject to approval remains subject to approval, even if saline solution is added and an injection solution is made of it. A penalty for fraud is also being considered. The customer is entitled to assume that he will receive an approved drug when he goes to the pharmacy. If this is not the case, the pharmacist will replace the patient. According to the BGH, the decision has implications for a number of similar cases.
The pharmacist’s defense reacted with incomprehension. The judges had "completely reinvented pharmaceutical law, that’s shocking," said attorney heinz-uwe dettling. Other experts also expressed surprise: "the judges’ reasoning is hanebuche in terms of pharmaceutical law," said wolfgang spoerr of the law firm hengeler mueller in berlin.