Cash benefit despite private treatment

Landessozialgericht Hessen: Cash benefit despite private treatment, if the doctor did not clearly indicate the private benefit

16/08/2011

In a recent ruling, the Landessozialgericht in Hessen ruled that private-medical therapies must be taken over by the statutory health insurance if the attending physician did not inform the patient about this in advance.

Cash patients can in principle only use medical services if they are listed in the catalog of benefits of the statutory health insurance funds. All other treatments have to be paid out of pocket and therefore apply so-called IGEL services. If a doctor advises his patient on a therapy that is not listed as a health insurance, this must inform the patient about it. If the patient is not cleared up, he has to pay for the costs himself. Against this practice of Kostenschieberei a man from Frankfurt am Main has sued and was partially awarded by Landessozialrichtern right.

In the specific case a widower, whose already deceased wife was referred to the University Hospital in Frankfurt because of a colorectal cancer illness, complained. There was a special cancer therapy undertaken, which is not listed as a cash benefit. The family doctor of the deceased had prescribed the cancer treatment, without indicating that it was a private medical treatment. On the spot, the patient signed a private treatment form. The clinic later invoiced the therapy. In addition, the cancer patient used a different form of therapy than was prescribed by the family doctor. After the clinic treatment, the woman made a claim for reimbursement from her health insurance. The health fund refused the reimbursement and argued that the benefits were not reimbursable. The procedure carried out is not recognized under contract law, as stated in a letter of refusal. A previous lawsuit filed by the patient was rejected by a social court in 2008. As a result, the plaintiff appealed to the Landessozialgericht Hessen. Since the plaintiff died as a result of her illness, the husband inherited the claim.

The judges at the Land Social Court saw the matter more differentiated overall. The unfulfilled information obligation of the physician must be charged to the health insurance. Moreover, according to the husband, the deceased had not even been aware that the treatment was different from that actually prescribed by the family doctor. The signed form was in the opinion of the court had been insufficient because at that time was not immediately recognizable that it was a non-reimbursable benefit of the statutory health insurance. (File reference: L 8 KR 313/08)

The plaintiff could achieve only a partial success. Although the health insurance was obliged by judgment to cover the treatment costs of a total of 18,500 euros, however, the husband has to bear the largest share of the costs as an heir. Even though the patient was informed by the refusal of the health insurance company that cancer therapy was not part of the spectrum of health insurance services, the special treatment was continued at that time. In the following years, a whopping 50,000 euros were added. According to the court, the plaintiff now has to pay the costs himself. Only the period before the letter must be reimbursed by the fund.

The verdict is not yet final, because the defendant health insurance now filed an appeal to the Federal Social Court. No wonder, since otherwise the health insurance companies could incur costs in the millions if physicians do not clearly point out the aspect of private treatment. It remains incomprehensible why the family doctor or the clinic are not jointly responsible. This aspect played no role in the reasoning. (Sb)

Picture: HHS