Benefit regulation of the private health insurance (PKV) after desired treatment success

– Unlawful denial of benefits based on lack of medical necessity –

Some employees of benefits departments in private health insurance are engaged in strategic claims settlement for potentially up to more than nine million private health insurance policyholders. This means that
one ignores if necessary also the supreme court iurisdiction and by own yardsticks of the interpretation of model conditions of the private health insurance (MB/KK 2009) tries the private health insurance-insured almost more intuitively after the felt will of the contracting parties the entitled achievement determines. This is ultimately for the good of the insurance collective – formally proving
Unfortunately, however, it often proves impossible to withstand a judicial assessment that places individual contractual claims above the interests of the insurance collective.

Necessary medical treatment

Medical treatment after an accident or due to illness serves not only to heal, but also to alleviate as well as to counteract an aggravation – crucial
is only the medical view (BGH, judgement of 12.03.2003, Az. IV ZR 278/01). The doctor’s freedom of therapy includes the sole decision on the necessity, type and scope of treatment (BGH, judgement of 10.07.1996, file no. IV ZR 133/95) – for the obligation of the PKV to pay benefits, however, an objective view is also important.

It must be determined whether the treatment (as well as the use of an aid such as glasses or a wheelchair) is necessary for the “desired success of the treatment” solely on the basis of
is necessary for medical reasons.

If, for example, the ophthalmologist considers a Lasik operation to restore vision (as a desired outcome) to be medically necessary, the PKV can refer to the
The viewpoint is that this goal of being able to see well again could be achieved more safely and with fewer risks with glasses.

Likewise, in the case of medically advised hospital treatment, the PKV can be referred to an equally appropriate outpatient treatment.

Rating agency spreads legal errors to confuse private health insurers

A rating agency with an “overview of private health insurance” said, for example, that veneers for teeth are never medically necessary because the sole aim is to restore the ability to chew.
is medically necessary, and for that the appearance is not important. Therefore, even a PKV insurer who expressly covers veneers up to tooth 6 could not rely on
that they were only necessary up to tooth 5 in the specific individual case. Insurers who do not limit anything here, but also do not list it, on the other hand, would be purely accommodating l
eist and could not get a “plus point” in the rating for it.

However, the “desired success of the treatment” as a yardstick against which the medical necessity of the treatment leading to it is to be measured is something which itself eludes assessment as “medically necessary” even under the insurance conditions. Nevertheless, benefit departments of the PKV try to argue with this already at the preliminary stage of the “treatment objective”:

If, for example, in the case of dental prostheses, it is assumed that only the restoration of the ability to chew is medically necessary (as a result of the treatment, i.e. as a goal), then purely optical effects that can be achieved by veneers (i.e. as a goal the restoration of a natural appearance) would not be reimbursed because they are not medically necessary. However, over
In addition to chewing ability, the treatment objective “fixed dentures” is also recognised.

On the other hand, a dentist may well choose the restoration of a natural appearance as the intended goal of medically necessary treatment, in which case veneering would be
in the area where teeth are visible (and this may vary depending on the size of the teeth and the width of the mouth as well as professions where the mouth is opened particularly wide, as in the case of the opera singer or the politician, up to tooth 4, 5, 6 or 8) medically justifiable, and to be reimbursed by the PKV.

Some insurers generally allow veneers up to tooth 4, 5 or even 6, others up to tooth 8, others do not even list them explicitly, because they generally also cover the
aesthetic success and then, depending on the case, provide up to tooth 5, 6 or even more, based on examination of the dentist’s opinion.

No predictable treatment success necessary

The school medicine of the universities stands equally beside the alternative medicine up to outsider methods, because the treatment success of a medically necessary medical treatment must be by no means foreseeable (BGH judgement of 08.02.2006, Az. IV ZR 131/05). Reimbursement for naturopathy cannot be refused on the grounds that there are other suitable recognised methods of treatment – this would also impede the progress of science and technology. There does not even have to be a generally recognized therapy – sufficient
is solely the medical justifiability: The burden of proof for the contrary lies with the PKV (BGH, judgement of 29.05.1991, Az. IV ZR 151/90). Only the costs can be
be limited to comparable conventional medical procedures.

Even the objective of a “fixed denture” – with implants – as opposed to a removable one could be rejected if the only medical objective was to restore the ability to chew.

If one wanted to examine the “desired treatment success” and not first the treatment leading to it according to criteria of medical necessity, everything becomes diffuse. Why still
Remove scars on the face of accident victims? And cut off ears don’t have to be replaced either, unless it would be medically necessary, e.g. as a support for the spectacle frame, whereas
you can still attach this without ears with a string behind your head, but of course not because you just like to attach earrings to it.

If mobility alone were medically necessary, then the wheelchair would be enough, the operation to be able to walk again would not be medically necessary, because it would not be necessary for mobility.
is necessary to be able to walk. And those who achieve success “walking” with crutches do not need a risky operation to be able to walk again without aids. Would “walking without
aids” a treatment goal to be recognized, why then not “seeing without aids”, thus Lasik-OP’s unrestrictedly?

If it were a matter of proving the medical necessity of the treatment objective, then the PKV could refuse a vital operation as long as the PKV customer was not supported by
medical certificate proves why it is necessary from a purely medical point of view for him to live to see next year. Just like the best friend asks a GKV-insured person: “Whether
that the implants are still worth it at your age?”.

Teeth are not medically necessary either: In old people’s homes, the toothless person’s food is put through a meat grinder and then served out of a sippy cup mixed with fruit juice – this is even safer than him choking on a piece of Snow White-brand apple he bit off himself and got stuck in his throat.

Science clause

Some PKV tariffs contain ineffective clauses, for example those which the lawyer describes as surprising or inappropriately disadvantageous, §§ 305c, 307 BGB. This includes
Regulations that postulated the scientifically proven success of a treatment method as a prerequisite for reimbursement. Such science clauses
are, however, invalid (BGH, judgement of 23.06.1993, file no. IV ZR 135/92).

What treatment success may the insured person strive for?

When benefits are refused, many private health insurance customers remember their agent who emphasised the generosity of the private health insurance when selling the contract – in the case of greater benefits, it comes to
It happens more often that attempts are made to confuse dentists and doctors in particular.

However, a clear distinction must be made between the “desired outcome of treatment” and the “medical necessity” of the treatment leading to it. The attempt of the PKV, already the
The questioning of the desired treatment success with criteria of medical necessity must be countered with a clear argumentation. This means that in many cases benefits can be achieved where today they are refused. For the question of the medical necessity of a treatment, it must first be said “for what” – and this “for what” withdraws
is not subject to evaluation according to criteria of medical necessity. The terms of the policy do say “for the cure or mitigation of consequences,” but that still leaves
all open, namely the question of how far the cure or alleviation of the consequences should go. Should the paralyzed person also be able to ride a bike again, or go downhill skiing,
like in the old days? Or just somehow be able to get around on his own two feet, with or without assistive devices? Should the accident victim be restored so that he is not stared at in the tram, or according to his original appearance so that he is recognized by his own mother?

Is a black blindfold sufficient for PKV-insured persons, so that one does not look into an empty eye socket, or as with domestic animals the sewing up of the eyelids, or does it have to be a glass eye, possibly still artfully in colour adapted to the other? Or do you first have to prove it as “medically necessary” or required or to be recognized for other reasons, which is not possible with the call center agent (the black bandage is enough for him, because nobody sees him anyway), but e.g. with the financial advisor, who wants your money and can’t look like a pirate.

Although the desired success of treatment is not to be judged according to criteria of medical necessity – it must nevertheless be justified and does not lie in the subjective wish of the patient. The desire for the best possible result – e.g. a hearing aid with an optimal natural sound experience no matter what it costs – does not have to be fulfilled any more than, for example, the desire to replace a wisdom tooth with an implant or to enable a paralysed person to climb the north face of the Eiger again. There are, however, quite individual justifications
for a treatment objective to be pursued where this may not be justifiable in other cases.

Assistance from doctors, dentists, experts, legal expenses insurance, litigation financiers

If the PKV-insured person unsuccessfully asks for cost approval or reimbursement of services, a procedure for the preservation of evidence or a lawsuit for the determination of the obligation to indemnify would have to be considered. Legal expenses insurance (RSV) can cushion the majority of the costs – but again, it’s not all-risk insurance. For example, the usually useful assistance of medical experts is not advanced to the policyholder. Most insurers do not wait for a judgement in the last instance – however, it is checked beforehand whether the PKV-insured person pursues his legal claims or lets himself be turned away. This is ultimately the result of a sense of responsibility for the collective of insured persons, who would otherwise be burdened by higher premium adjustments due to exploitation by individuals.

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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