Verdict Genetically high breast cancer risk may be a disease

Federal Administrative Court: Preventive treatment conceivable
An increased breast cancer risk due to familial bias and a gene mutation can be a disease. If necessary, the aid must also pay for the precautionary removal of the mammary glands, the Federal Administrative Court ruled on Thursday, 28 September 2017, in Leipzig (ref .: 5 C 10.16). After that, it also depends on the possibilities of early detection and the then existing chances of recovery.

An official from southern Hesse had sued. In her there is a BRCA2 gene mutation, which leads to a corresponding familial bias with a probability of 80 percent to breast cancer. Here, several female family members were already suffering from breast cancer. Doctors classified the official as a "high-risk patient".

In Germany, 70,000 new cases of breast cancer are counted each year. (Image: Sven Bähren / fotolia.com)

Therefore, she did not want to wait until she gets breast cancer. From the aid, which covers part of the health care for civil servants, she applied for a preventive breast surgery with implant reconstruction. The state of Hesse refused, however. The officer still had the operation carried out and sued for reimbursement.

Like the Darmstadt Administrative Court, the VGH Kassel also upheld the claim (judgment and JurAgentur report of 10 March 2016, file no .: A 1261/15). Although the assumption of costs in such cases is not directly provided for in the Hessian state aid rules. However, it derives from the duty of care of the employer enshrined in the Basic Law.

In principle, this has also been followed by the Federal Administrative Court. The high risk of breast cancer from a BRCA2 gene mutation could be a state aid law, judged the Leipzig judges. Accordingly, even the Federal Social Court (BSG) in Kassel decided for the statutory health insurance.

However, a disease requiring treatment is only present if the likelihood of a disease is so high and the consequences are so severe that "the person concerned is unreasonable in the overall evaluation,
to let events take their course and to limit themselves to the use of early detection measures ".

According to the Leipzig verdict, it is therefore not only about the risk of disease, but also on the possibilities of early detection and the then existing chances of recovery. Therefore, VGH Kassel should review both of these and reassess them together with the risk of disease in an "overall view". mwo