A small businesswoman is embroiled in years of legal skirmishes with the Basel health department. At the end of the day, there are horrendous legal fees. The story of an escalation.
If the Basel health authorities had their way, Hanna Müller* would no longer be allowed to work as a freelance nurse. And she would be convicted of fraud. But Müller defended himself with all means and a lot of legal help – and was right. In the procedure for the license to practice the profession, the Basel court of appeal ruled last year that the allegations of the health department (GD) were misguided: Müller did not bill her services incorrectly. And it does not pose a threat to public health.
At the same time, the GD also initiated criminal proceedings against Müller. This is because the nurse is said to have charged certain services twice. And because she did not report a reduction in benefits by the health insurance company of a Spitex client to the authorities in 2018. Since the public sector assumes part of the costs in each case, they must be informed about such steps by the insurer so that they can reduce the bill themselves. However, the damage that the department claimed was only 300 francs.
amateurism on the part of the authorities
The Basel public prosecutor’s office recently dropped the criminal proceedings for formal reasons. The process requirements are not met at all: With such a deep potential damage, a criminal complaint must be made no later than three months after “the perpetrator became known”. However, the DG had missed this deadline by several weeks. The public prosecutor’s decision to stop the investigation also reveals the dilettantism of the health authorities.
No professional ban, no verdict for minor fraud: one would think that everything would be right again for Müller. But she is not. On the one hand, because she was not officially declared innocent in the criminal proceedings. And on the other hand, because the public prosecutor’s office decided against them on a crucial point: the legal fees. Müller had estimated the expenses for her defense alone in the criminal proceedings at around 60,000 francs. But she should only receive 1,700 francs.
Where does this discrepancy come from? It has to do with the course of the process. When a party files a criminal complaint, the defendant does not actually have to do much. She can wait and see whether the public prosecutor’s office considers the prerequisites for proceedings to be given at all. If not, the case is closed. But the nurse did not have this composure.
Stressed about the ad
Instead, it deployed an extensive and enormously costly defense system. Their disputes with the authorities have been going on for many years. Therefore, when she received a copy of the 18-page criminal complaint, it caused her great stress, explains one of her lawyers. “She had the feeling that the health department was attacking her on all possible levels and now they finally want to force her out of the profession.” It was actually about her existence, because after being convicted of fraud, she could have forgotten her professional license.
Nevertheless, the exorbitant expenses for the defense were not necessary, the public prosecutor held against her – and only granted compensation of 1,700 francs. Müller’s lawyer has filed an appeal against this decision. However, the costs of the criminal proceedings are only a small part of Müller’s expenses for legal assistance. In the other case won, the appellate court awarded her compensation of 17,000 francs. However, the expenses for her three lawyers would have amounted to almost 500,000 francs, claims Müller.
“I want justice”
The nurse cannot let go. She feels she has been the victim of a plot, which the authorities deny. That’s why she went on the offensive herself and filed a supervisory complaint. That’s not cheap either. All in all, her years of fighting the authorities has so far cost the nurse the insane sum of around 600,000 francs, as she calculates. In addition, there was a high failure in her one-woman business because she was only able to work to a limited extent for a long time.
But is this gigantic effort justified? No, says Müller’s legal expenses insurance and refuses to pay most of the bills. She takes the position that Müller’s involvement of an army of lawyers is “inappropriate and partly unnecessary”. The insurance company had always expressed “concern about the cost problem” to her, but Müller ignored the advice. The court of appeal also found the 500 francs per hour charged by one of Müller’s lawyers to be too high – and only granted the party compensation at the usual level of 250 francs per hour.
But the lawyer in question is one of the most renowned experts in Swiss health law, who also holds a titular professorship in public law at the University of Zurich. “If the woman hadn’t found such a competent – and expensive – lawyer, she might not have been able to prove that she had done nothing wrong. And she should no longer work, »says another lawyer from Müller’s team.
Of course, you have to exercise moderation when mandating legal professionals. “But I doubt that there was too much support given the complexity of the matter.” The case is indeed complex: the appellate court needed 75 pages to justify its decision. Pierre-André Wagner, head of legal services at the Association of Nursing Professionals (SBK), once accused the Basel authorities of “shooting sparrows with cannons” in the Müller case.
Private sponsor
Müller hopes that the appeal in the criminal proceedings will be successful and that she will get at least part of her expenses reimbursed by the state. But she will have to shoulder most of it herself. How is that even possible? “Certainly not from the earnings of the care, even if I worked day and night!” says the nurse. Your private environment takes over the costs. “I will never be able to earn all the money I put into the legal dispute again.”
Ultimately, it is the story of an extreme case in which many questions remain unanswered: How can a legal layperson know how much money and energy to invest in a dispute with the authorities? What are the chances of being reimbursed for expenses if you win in court? And does someone who is not lucky enough to be able to count on a generous sponsor even stand a chance in such a tangled dispute?
What is clear, however, is that there are only losers in this case – apart from the lawyers, who earn a great deal.
* Name changed.