– Judgement LG Aachen: Private health insurance and privately insured persons often only owe statutory health insurance prices –
Dentists joke about their patients “The earnings from a total renovation have been enough for generations to buy a new swimming pool”. However, a new ruling by the Aachen Regional Court (Ref. 11 O 367/10 of 23.02.2011) puts a stop to excessive cost claims.
Private patients do not owe the dental laboratory higher prices than patients covered by health insurance
“It is not understandable why different prices should be justified for the same laboratory performance. The differentiation of the remuneration solely according to the insured status of the patient is not an objective reason”, judged the LG Aachen. In principle, the lower prices of the BEL (Bundeseinheitliches Verzeichnis der abrechnungsfähigen Leistungen), which is also used by the GKV for its 90% of all insured persons, apply.
Court cuts dentist bill by about a third
Prices varying according to the status of the insured are not objectively justified. As a rule, the scope of benefits for private patients will also not be higher than for those with statutory insurance. However, if a higher quality could actually be demonstrated, higher prices would be justified.
Uniform Federal Naming List for Dental Services (BEB)
Anyone who chooses a private health insurance or transfers from the statutory health insurance to the private health insurance naturally thinks that he or she will also be reimbursed for the amounts usually charged to private health insurance policyholders. Not only dental laboratories charge more with BEB than with BEL (the rates applicable to patients covered by health insurance), but also physiotherapists, psychotherapists and other professional groups without a binding fee schedule charge private patients more than patients covered by health insurance. This is also not justified if the quality is not demonstrably better. If you want to be on the safe side, get a treatment and cost plan to get the blessing of your private health insurance before the treatment. Certain dentists known to the city then have to prepare another two to four cost plans (with ever lower prices) until the private health insurance is satisfied. Factual “discounts” of 50% and more can then be observed at some dentists.
Insurance broker liability after PKV conclusion and change of insurance
Only rarely do brokers examine whether, for example, an unrestricted benefit for dental prostheses without explicit reference to BEB – in which case, however, a reduction to BEL would then be possible via the always possible appropriateness test – is better than an explicit restriction to BEL or even a restriction to at least something between BEL and BEB via an insurer’s list of benefits. In the event of a claim, it could then turn out that the (unqualified) rate recommended as better by the broker was in fact the worse rate. Especially with insured persons who do not have the necessary financial cushion to pay for something on top of it themselves, the broker will have to recommend the possibly more expensive rates with the better services.
Legal expenses insurance should be taken out before the private health insurance
Broker liability often comes into play because the insurance broker forgets to point out that claims for benefits in such emerging typical disputes may first have to be enforced in court, with an uncertain outcome. Even in 98% of hopeless cases, some health insurers generally refuse certain services and prefer to be sued by only a few. It is typical that insurance brokers have not read the insurance conditions themselves and therefore naturally leave the customer in the unfounded belief that everything is well insured. In fact, however, it depends on what the insurer actually promises in terms of benefits – and what it can withdraw from if there is a sudden need to make savings with the private health insurance. Then, for example, veneers on teeth suddenly are never medically necessary again.
Voluntary additional fees without claim for reimbursement from the PKV
The dentist is of course entitled to what he has agreed with the patient, up to the usury limit, i.e. also well beyond what is reasonable, which is covered by the insurer, as is the physiotherapist, etc. However, strict legal formalities apply to such remuneration agreements, which must be observed – otherwise the patient will owe only what is reasonable. The agreement must be concluded before the start of treatment, and must, for example, contain the information that reimbursement by private health insurance may not be fully guaranteed. However, anyone who thinks that insurers would then have to reimburse this is just as wrong as anyone who uncritically claims a too expensive rental car after an accident.
Invalid remuneration agreements from the dentist
It is one of the tricks of some dentists that they first start the treatment and “inject” the patient. Then the case is similar to that of emergency and pain treatment – the remuneration agreement which is only then signed is void. A treatment and cost plan would also not be recognised as a remuneration agreement.
Non-binding information from insurers misleads patients
Of course, the insurer can also expressly agree more than what is reasonable as an obligation to pay benefits in its terms and conditions. This can be done by explicit reference to e.g. own service specifications for laboratory services, physiotherapy, aids etc., or by stating an hourly rate for psychotherapists. The broker must then recognise whether this is an extension of the obligation to perform beyond what is otherwise only reasonable or, on the contrary, whether it is a restriction compared to an otherwise only possible focus on reasonableness. And he must advise his customer accordingly, if necessary also point out the different case law and the previous behaviour of the insurers concerned known to him per tariff or per set of conditions. It is better to admit to the customer when he does not know something for sure than to claim it as a fact.
Neither a broker nor an insured person may rely on (non-binding) information provided by the insurer. Even a binding declaration of what the insurer (currently) considers appropriate only helps up to the point where the insurer changes its opinion about what is appropriate – e.g. because of current case law or because the board of directors has agreed a reduction in benefits as a goal in salary negotiations. Thus, the wording of the small print and the insurance policy is decisive, whereas even written explanations are often only non-binding explanations of knowledge without any binding intent. If they are printed on one side, they can at least be turned over and used as scrap paper.
by Dr. Johannes Fiala and Dipl.-Ing. Peter A. Schramm
by courtesy of
www.handwerke.de (published in issue 10/11-2017, page 6-7)
www.experten.de (published on 16.11.2017)
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About the author
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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