CMS supports Fresenius Medical Care Ukraine LLC in winning a landmark case in the Supreme Court

CMS RRH Kyiv has successfully supported Fresenius Medical Care Ukraine LLC in a commercial dispute against a public healthcare provider before the Supreme Court. The Supreme Court’s decision in the landmark case sets out positive Supreme Court practice for several identical cases concerning Fresenius currently being considered in courts of different instances.

Fresenius Medical Care is the world's leading provider of products and services for individuals with renal diseases and is a long-standing CMS client. As a leading hemodialysis treatment provider, Fresenius has established hemodialysis centres in two Ukrainian regions within a state-funded programme to provide hemodialysis treatment for patients whom public healthcare providers are incapable of treating.

The treatment was provided under separate agreements between Fresenius Medical Care Ukraine LLC and each public hospital, concluded within public procurement procedures. Due to the failure by hospitals to initiate each consequent public procurement procedure in a timely manner, there were gap periods when the services were provided but were not covered by written agreements. While Fresenius Medical Care Ukraine LLC was obliged under Ukrainian law to continue treating the patients, the hospitals refused to pay for these services.

After being unable to recover payments from the hospitals through pre-trial negotiations, Fresenius Medical Care Ukraine LLC, represented by CMS, proceeded by filling five claims against five hospitals in one of the stated regions. CMS won all five claims in the first instance; however, because of inconsistency in Supreme Court practice, three of the first instance court’s decisions were overruled in the appeal court.

CMS has further successfully defended Fresenius Medical Care Ukraine LLC claims within the first cassation appeal supporting the motivation of an earlier Supreme Court decision in an identical matter and providing persuasive arguments to dismiss later negative Supreme Court practice. In October 2021 the Supreme Court has once again reviewed the matter of payments during the gap periods and has accepted CMS’s arguments to satisfy Fresenius’s Medical Care Ukraine LLC claims against one the public hospitals.

This dispute resolution matter was handled by CMS RRH Kyiv Dispute Resolution team, led by Anna Pogrebna and Oleksandr Protsiuk, with support from Diana Valyeyeva.

If you have any questions, please contact Oleksandr Protsiuk for more information.