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The German law on working hours: Five-year experience of a German chairman
The German law on working hours: Five-year experience of a German chairman Christian Herfarth, MD, FACS (Hon), Heidelberg, Germany
From the Department of Surgery, University of Heidelberg
The government regards adherence to legal working hours, especially in the healthcare system, as decisive. Health experts are considered to be role models for society, and thus their working hours are supposed to have exemplary impact. Trade unions hold a similar view. The new law for the organization of working hours has the following main content: 1. Daily work time may not exceed a maximum of 8 hours, and work hours per week are laid down at a maximum of 38.5 hours. On average, work time may be extended to 10 hours if adequate free time is provided as compensation. 2. Breaks are laid down exactly by law. For a work period lasting 9 hours, breaks amount to a total of 45 minutes in 15 minute time segments. The first 15-minute break must be scheduled after no more than 6 hours of work. The minimum amount of time prescribed by law between working days amounts to 11 hours. In the case of calls for emergency cases or very difficult and specialized surgery, classification is made according to the degree of stress involved, and other clear regulations exist as to when work may be resumed and when a break must be taken. This bureaucratic regulatory system is replacing the traditional academically motivated, nonregulated system in university hospitals. The goal is decreased burden of stress and avoidable night work. The arrangement of working hours in shifts is intended to take into consideration the health of
Accepted for publication March 18, 2003. Reprint requests: Christian Herfarth, MD, FACS (Hon), Department of Surgery, Prof Emerit, University of Heidelberg, Im Neuenheimer Feld 110, D-69120 Heidelberg, Germany. Surgery 2003;134:12-4 © 2003 Mosby, Inc. All rights reserved. 0039-6060/2003/$30.00 + 0 10.1067/msy.2003.173
12 SURGERY
those working, family obligations, and free time for social activities (clinical research is not explicitly mentioned). To ensure compliance with these regulations, a monitoring system is being set up in which anonymous notification, checking of work and service schedules, and official state controls are planned. The primary philosophy of this law is to place all employees on an equal footing, regardless of profession. Directors and their deputies are expressly excluded. I will comment on this law from the viewpoint of my experience as a chairman of a surgical department during the first years after implementation of this new law. THE CONFLICT The effects on hospital operation caused by adherence to this law are extreme. Owing to the broadness of its interpretation, this law covers all medical employees and affects attending staff surgeons as well as trainees. Through adherence to the law, deficits of information are created. The amount of time available to spend on patients is clearly decreased. Contact with patients’ relatives is made much more difficult and impersonal. Specially qualified surgeons are sometimes unavailable, and long-planned operations are sometimes delayed because of urgent operations taking place the previous night. Surgeons are often no longer able to meet with patients before the operation owing to the complete alteration of planned working time in the hospital (change in workflow). Misunderstandings in the course of patient information are distinct possibilities. Cooperation with nursing personnel is made more difficult because nursing personnel have a clear 3 shift system in 24 hours, which cannot be coordinated with the shifts in the surgical department. Certain positive effects of the law on working hours exist with regard to the organization of the
Surgery Volume 134, Number 1
department by means of patient management and lean surgical workflows, but from the patient’s perspective the change in primary surgeon might be negative. An interruption of operations for reasons of working hours must be avoided in all circumstances. For this reason, planning surgical workflow has become more stringently controlled. Once the appointment for the operation has been unalterably established, changes in the surgical team because of forced absence of the originally scheduled surgeon become possible and even routine. Changes in the surgical team during surgery must be avoided as much as possible. CONSEQUENCES FOR ACADEMIC AND SURGICAL AREAS The new time regulation limits the training of young surgeons because the time available for further training is shortened considerably. Seen from a purely formal point of view, a further 60 working days per year at least—which would otherwise be available for gaining new surgical experience—are lost. Because of the new legal regulations, the effective postduty availability of competent and responsible staff surgeons appears severely restricted and may detrimentally influence patient care. Up until now, access and timeliness of care has not decreased, but nonobservance of the law is sometimes the prerequisite. Liability issues have also arisen: incomplete or wrong documentation, delays caused by false estimates of individual patients’ risk, recovery time or pending complications, and the like. Malpractice legal actions have also been filed because surgeons exceeded allowed working hours. The tendency, moreover, to completely independent nursing care increases. Until now, no essential disruptions have occurred in the area of clinical research, as far as known, related to the law on working hours not being observed. There are signs, however, that time controls will be practiced here, too. SUGGESTED SOLUTIONS Creating additional jobs for doctors has the appearance of being the simplest solution. However, it would not suffice to create more training positions here; rather the positions would essentially be for specialists who can work independently in shifts. The estimate for Germany is that some 15,000 to 25,000 new positions for doctors need to be created for all clinical medicine. The suggestion of not observing the law was frequently followed during the first years, especially at academic university hospitals. However, because
Herfarth 13
state checks are being carried out more frequently, and directors are being threatened with large fines or prison when the law on working hours is not observed, adherence to the law is increasing. For surgeons, the law does indeed mean a considerable decrease in work time and an increase in leisure time. The new principle can be seen to be slowly establishing itself; physicians no longer want to tolerate the repeatedly occurring conflict between legality and legitimacy involved in evading the law. Financial losses occur because there is no longer any additional remuneration for overtime. Meanwhile, at nonuniversity hospitals, the law has become largely accepted, although directors show signs of resignation and aim for early retirement. Younger assistants become used to a different lifestyle and sometimes even practice other professions or activities as a sideline. THE DIRECTORS’ DILEMMA Chairmen and chiefs of services see themselves confronted with an extraordinary dilemma. They are forced to adhere to the law, but on the other hand they are aware that competent training, particularly in surgery with its special branches, is becoming more difficult to provide. They see the appearance of a new generation accustomed to much decreased work hours. Directors realize that at the same time working hours are being regulated and possible additional burdens on budgets are being created by the addition of extra positions, health insurance agencies are forcing general budgetary restrictions. The mood is swinging between “Should we give up, concede, or go for a constructive shoot-out?” Directors have also asked themselves whether they deserve this kind of regulation. The law on working hours is a product of “theoretical masterminds” who, in their general socialistic euphoria, either do not know the special characteristics of individual professions, particularly those of surgery, or knowingly ignore them. There is, however, another important perspective: the patients will be the ones to suffer from the new time system in the end. A selective system of medicine, similar to that practiced in disaster situations, will establish itself; the selection will be even more marked than when cases are chosen for suitability and profitability for economic reasons. It is no comfort to know that this law will become a European law. A law that is wrong in its present form is not improved by expansion. A way must be found to permit exceptions and to leave out the clinical research area altogether. The reader of this comment must know that the government
14 Herfarth
is presently trying to introduce a nearly nationalized health system in Germany, starting with freezing annual budgets (for at least 2 to 3 years) and restricting patients’ choice of physician. The further development of privately financed medicine (15% until now) remains unclear. The collective
Surgery July 2003
wage system hitherto in use could be changed. In many ways, the future is open and uncertain. REFERENCES 1. Herfarth C. “Lean” surgery through changes in surgical workflow. Br J Surg 2003;90:513-4.
From the Department of Surgery, University of Heidelberg
The government regards adherence to legal working hours, especially in the healthcare system, as decisive. Health experts are considered to be role models for society, and thus their working hours are supposed to have exemplary impact. Trade unions hold a similar view. The new law for the organization of working hours has the following main content: 1. Daily work time may not exceed a maximum of 8 hours, and work hours per week are laid down at a maximum of 38.5 hours. On average, work time may be extended to 10 hours if adequate free time is provided as compensation. 2. Breaks are laid down exactly by law. For a work period lasting 9 hours, breaks amount to a total of 45 minutes in 15 minute time segments. The first 15-minute break must be scheduled after no more than 6 hours of work. The minimum amount of time prescribed by law between working days amounts to 11 hours. In the case of calls for emergency cases or very difficult and specialized surgery, classification is made according to the degree of stress involved, and other clear regulations exist as to when work may be resumed and when a break must be taken. This bureaucratic regulatory system is replacing the traditional academically motivated, nonregulated system in university hospitals. The goal is decreased burden of stress and avoidable night work. The arrangement of working hours in shifts is intended to take into consideration the health of
Accepted for publication March 18, 2003. Reprint requests: Christian Herfarth, MD, FACS (Hon), Department of Surgery, Prof Emerit, University of Heidelberg, Im Neuenheimer Feld 110, D-69120 Heidelberg, Germany. Surgery 2003;134:12-4 © 2003 Mosby, Inc. All rights reserved. 0039-6060/2003/$30.00 + 0 10.1067/msy.2003.173
12 SURGERY
those working, family obligations, and free time for social activities (clinical research is not explicitly mentioned). To ensure compliance with these regulations, a monitoring system is being set up in which anonymous notification, checking of work and service schedules, and official state controls are planned. The primary philosophy of this law is to place all employees on an equal footing, regardless of profession. Directors and their deputies are expressly excluded. I will comment on this law from the viewpoint of my experience as a chairman of a surgical department during the first years after implementation of this new law. THE CONFLICT The effects on hospital operation caused by adherence to this law are extreme. Owing to the broadness of its interpretation, this law covers all medical employees and affects attending staff surgeons as well as trainees. Through adherence to the law, deficits of information are created. The amount of time available to spend on patients is clearly decreased. Contact with patients’ relatives is made much more difficult and impersonal. Specially qualified surgeons are sometimes unavailable, and long-planned operations are sometimes delayed because of urgent operations taking place the previous night. Surgeons are often no longer able to meet with patients before the operation owing to the complete alteration of planned working time in the hospital (change in workflow). Misunderstandings in the course of patient information are distinct possibilities. Cooperation with nursing personnel is made more difficult because nursing personnel have a clear 3 shift system in 24 hours, which cannot be coordinated with the shifts in the surgical department. Certain positive effects of the law on working hours exist with regard to the organization of the
Surgery Volume 134, Number 1
department by means of patient management and lean surgical workflows, but from the patient’s perspective the change in primary surgeon might be negative. An interruption of operations for reasons of working hours must be avoided in all circumstances. For this reason, planning surgical workflow has become more stringently controlled. Once the appointment for the operation has been unalterably established, changes in the surgical team because of forced absence of the originally scheduled surgeon become possible and even routine. Changes in the surgical team during surgery must be avoided as much as possible. CONSEQUENCES FOR ACADEMIC AND SURGICAL AREAS The new time regulation limits the training of young surgeons because the time available for further training is shortened considerably. Seen from a purely formal point of view, a further 60 working days per year at least—which would otherwise be available for gaining new surgical experience—are lost. Because of the new legal regulations, the effective postduty availability of competent and responsible staff surgeons appears severely restricted and may detrimentally influence patient care. Up until now, access and timeliness of care has not decreased, but nonobservance of the law is sometimes the prerequisite. Liability issues have also arisen: incomplete or wrong documentation, delays caused by false estimates of individual patients’ risk, recovery time or pending complications, and the like. Malpractice legal actions have also been filed because surgeons exceeded allowed working hours. The tendency, moreover, to completely independent nursing care increases. Until now, no essential disruptions have occurred in the area of clinical research, as far as known, related to the law on working hours not being observed. There are signs, however, that time controls will be practiced here, too. SUGGESTED SOLUTIONS Creating additional jobs for doctors has the appearance of being the simplest solution. However, it would not suffice to create more training positions here; rather the positions would essentially be for specialists who can work independently in shifts. The estimate for Germany is that some 15,000 to 25,000 new positions for doctors need to be created for all clinical medicine. The suggestion of not observing the law was frequently followed during the first years, especially at academic university hospitals. However, because
Herfarth 13
state checks are being carried out more frequently, and directors are being threatened with large fines or prison when the law on working hours is not observed, adherence to the law is increasing. For surgeons, the law does indeed mean a considerable decrease in work time and an increase in leisure time. The new principle can be seen to be slowly establishing itself; physicians no longer want to tolerate the repeatedly occurring conflict between legality and legitimacy involved in evading the law. Financial losses occur because there is no longer any additional remuneration for overtime. Meanwhile, at nonuniversity hospitals, the law has become largely accepted, although directors show signs of resignation and aim for early retirement. Younger assistants become used to a different lifestyle and sometimes even practice other professions or activities as a sideline. THE DIRECTORS’ DILEMMA Chairmen and chiefs of services see themselves confronted with an extraordinary dilemma. They are forced to adhere to the law, but on the other hand they are aware that competent training, particularly in surgery with its special branches, is becoming more difficult to provide. They see the appearance of a new generation accustomed to much decreased work hours. Directors realize that at the same time working hours are being regulated and possible additional burdens on budgets are being created by the addition of extra positions, health insurance agencies are forcing general budgetary restrictions. The mood is swinging between “Should we give up, concede, or go for a constructive shoot-out?” Directors have also asked themselves whether they deserve this kind of regulation. The law on working hours is a product of “theoretical masterminds” who, in their general socialistic euphoria, either do not know the special characteristics of individual professions, particularly those of surgery, or knowingly ignore them. There is, however, another important perspective: the patients will be the ones to suffer from the new time system in the end. A selective system of medicine, similar to that practiced in disaster situations, will establish itself; the selection will be even more marked than when cases are chosen for suitability and profitability for economic reasons. It is no comfort to know that this law will become a European law. A law that is wrong in its present form is not improved by expansion. A way must be found to permit exceptions and to leave out the clinical research area altogether. The reader of this comment must know that the government
14 Herfarth
is presently trying to introduce a nearly nationalized health system in Germany, starting with freezing annual budgets (for at least 2 to 3 years) and restricting patients’ choice of physician. The further development of privately financed medicine (15% until now) remains unclear. The collective
Surgery July 2003
wage system hitherto in use could be changed. In many ways, the future is open and uncertain. REFERENCES 1. Herfarth C. “Lean” surgery through changes in surgical workflow. Br J Surg 2003;90:513-4.