– How a responsible private health insurance achieves stable contributions –
A physician began his lecture on the subject of “Patient Will” with the words: “So, all those of you who are insured by the statutory health insurance (GKV) can now leave the hall – you will be left to die, because the GKV only pays flat rates and 10 fango packs at the end of your life, so that you can get used to the smell of damp earth”. Approximately 8 million private health insurance policyholders are particularly affected by life-prolonging measures, who have to actively shape their end of life through a trusted person with a power of attorney and living will.
Regional Court (LG) Munich: Treatments medically not indicated
The LG Munich I determined with judgement of 18.01.2017 (Az. 9 O 5246/14) that for life and suffering prolonging measures such as artificial nutrition before death objectively no more medical indication is given due to missing recognizable therapy goal. Life extension alone cannot be a medical therapy goal. However, treatments are then medically not necessary. It is no longer in any way a medical treatment. Not even to reduce suffering in the case of incurable illness, if only to increase and prolong it.
Greed in the health system
However, if treatments are not medically necessary, then they are not paid for by private health insurance (PKV). Reimbursement by the private health insurance must then be omitted, no matter what the relatives want. Nor does it depend on the – genuinely expressed or presumed – will of the patient. If he wants to or should continue to live, then at least not at the expense of the insurance group in the private health insurance.
The highest costs in private health insurance arise shortly before the end of life. If there is no obligation to reimburse costs, their customers or policyholders should not have to pay them with their premiums. If the private health insurance scheme were to discontinue uninsured benefits at all, premium adjustments could also be lower. These are used by the insured to pay benefits for which there is no obligation.
Artificial life extension instead of euthanasia
If premium adjustments are therefore ineffective, the board of directors may be liable, which wastes money without necessity, thereby prolonging the suffering of those insured with private health insurance. The Federal Constitutional Court (BVerfG, Order of 1 November 2012, file no. 2 BvR 1235/11) orders the courts, in the case of an accusation of breach of trust, to quantify the economic disadvantage in terms of the amount and to explain its “determination in an economically comprehensible manner” in the grounds for the judgment. Premium increases caused accordingly would then have to be assessed as ineffective in this respect, as they would be the sole responsibility of the insurance company itself.
When money is thrown out the window with both hands by the PKV
In addition to ineffective increases in private health insurance contributions, it is also possible to sue doctors and clinics for reimbursement of costs and compensation for pain and suffering at a later date (e.g. as an heir) (LG München I, judgement of 18.01.2017, file no. 9 O 5246/14): This requires proof that a (neglected) doctor’s consultation with the patient’s caregiver (cf. § 1901 b BGB) or family members would inevitably have led to the termination of treatment. A reasonable decision based on proper medical information could not be assumed to be inevitable.
If there is no objective medical indication, the patient is not obliged to pay the corresponding treatment invoices. However, this means that his private health insurance company is no longer obliged to reimburse him for these bills for medically unnecessary treatments, regardless of whether he has already paid them himself. The doctor must also provide information about this. If the insured person then nevertheless chooses the medically non-indexed treatment that merely prolongs life and suffering, he/she must pay for it him/herself, without any claim for reimbursement against his/her health insurance.
Patient will avoids time delays due to legal proceedings
The patient’s last will and testament must be given priority if the disease has taken an “irreversible fatal course” (BGH, decision of 17.03.2003, ref. VII ZB 2/03). Retirement home and nursing staff cannot oppose the common opinion of doctor and caregiver (BGH, decision of 08.06.2005, Az. XII ZR 177/03). The discontinuation of treatment is addressed as legal passive euthanasia – including palliative care; by dispensing with or reducing life-prolonging measures.
The Federal Court of Justice (BGH, decision of 17.09.2014, ref. XII ZB 202/13) ruled
“The discontinuation of a life-supporting measure does not require the approval of the care court according to § 1904, Subsection 2, BGB, if the person affected has already laid down his or her own will in an effective advance directive (§ 1901 a, Subsection 1, BGB) and this applies to the actual life and treatment situation that has occurred.
It is therefore imperative that the Patient Will or Patient Decree is regularly renewed so that this document is recognizably based on current medical and legal advice. A power of attorney can further facilitate their enforcement.
PKV delays redemption by reimbursing unnecessary costs
Only medically necessary treatment is insured in the PKV. If healing is impossible, it becomes more difficult. Then the criterion is the alleviation of the symptoms. If necessary, however, payments will be made for treatments whose effectiveness has not been proven, but also cannot be completely ruled out – the private health insurance company will check it intensively and will under no circumstances pay for everything that the doctor suggests or that the patient or his relatives would like to have.
If, however, terminally ill dementia patients are artificially fed for weeks, months or years and the costs are reimbursed by the private health insurance without a comprehensible obligation, the private health insurance prevents an act of mercy and redemption. And the private health insurance company uses the money of every member of the insured community for this prolongation of suffering without justification. In doing so, it disregards the right of those affected to die with dignity. Private health insurance directors who look away from this are acting reprehensibly – they could even be called upon to pay damages.
PKV must advise on euthanasia
Sometimes the private health insurance does not pay anything, especially when it becomes too expensive – perhaps with DaVinci cancer therapy or the non-scattering alternative proton radiation. Every insurance broker would have to be aware of this risk of “strategic loss adjustment” – in order to be able to recommend legal expenses insurance if necessary. On the other hand, he would also have to know about the risk of when the reimbursement of private health insurance costs leads to prolongation of suffering.
According to § 6 VVG, the private health insurer – or the broker – also has an obligation to provide advice for current contracts. This also includes advice on services – these can be requested as an insured party (UN), including comprehensible written documentation and liability of the consultant or insurer.
Many insurers (VR) also offer medical advice – for example as a medical second opinion or medical call centre. The private health insurance provides unlimited benefits at least in Europe and at least limited benefits worldwide. So it can also provide legal euthanasia services through doctors – for which it must then also provide advice.
Opportunity to reduce contributions to private health insurance through euthanasia
If the UN does not waste its assets on pointless treatments, even in the hope that it can be helped, the heirs can indemnify the broker or the board of directors if the UN, with proper advice, would have used legal medical euthanasia. If sufficiently clear clarification was provided, the UN would also have made an appropriate decision.
Objectively, many policyholders who today demand high benefits from their private health insurance will then choose a safer, more comfortable and cheaper alternative. The private health insurance should also contribute to an appropriate decision by pointing out the lack of a reimbursement obligation for measures without a medically indicated therapeutic goal. In addition, especially in the low-interest phase, this would have the advantage of saving benefits for those insured with private health insurance and thus mitigating premium increases.
Duty to advise on the risk of necessary euthanasia
Brokers should ensure that VR provides appropriate services for legal euthanasia. The highest benefits in private health insurance are accrued shortly before death. Many PKV-VRs also offer the service of providing proof of suitable doctors and arranging appointments – this should then also be possible in the case of medical legal euthanasia, if necessary abroad.
Aiding and abetting suicide with impunity?
The mediation of euthanasia, which is legal abroad but illegal in Germany, may be punishable by law. But: if the private health insurance is obligated to provide services for treatment that is only legal abroad, the question arises whether it then still has an obligation to provide advice on the scope of services, as does the broker, and to what extent. The legislator regulates in § 217 StGB since 10.12.2015:
“Anyone who, with the intention of encouraging the suicide of another person, gives, procures or arranges for the suicide of another person, with the intention of promoting the suicide of another person, shall be punished by imprisonment for up to three years or by a fine”. It remains to be seen whether this regulation is unconstitutional.
Punishable businesslike promotion of suicide?
The German Medical Association explains in a leaflet dated 20.01.2017: “A suicide is considered to be promoted if the act enables or significantly facilitates the suicide of another person. It depends solely on the funding action. Whether the suicide is actually carried out or attempted by the person concerned is irrelevant in this respect. Examples are the provision of a suitable room for the suicide (Granting), the prescription of a lethal medication (Procuring) or the establishment of a concrete contact, e.g. with a suicide helper in Switzerland (Providing an opportunity for suicide). “Cross-border suicide promotion by a foreign private health insurer would also be punishable if the consultant abroad is or becomes German, § 7 II StGB.
Impunity talks about suicide and treatment restrictions
This is different from discontinuing treatment and restricting treatment “by dispensing with or reducing life-prolonging measures”, palliative care and terminal care. Such legal intentions must be documented by medical and private health insurance consultants. Communication about suicide is also unpunished if it is not aimed at “promoting suicide” – but at best promotes the development of a treatment concept.
Accordingly, private health insurance in Germany could develop the concept of sedation (artificial coma) to prevent pain when artificial nutrition is prohibited (permitted treatment limitation) and promise benefits in return, also with the indication that treatment with artificial nutrition that only prolongs life and possibly also prolongs suffering would no longer be paid for. If necessary, it could also compare this with active euthanasia, which is only legal abroad, for information purposes, if necessary with brochures (including contacts) of corresponding foreign organisations, with the aim that the patient may prefer to opt for the legal variant in D on the basis of this information.
This would be a win-win situation for everyone involved: for all those who leave painlessly in time, those who stay, the heirs, the other insured persons who inherit the ageing reserves and the private health insurance.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published in “Der Koment, trade journal for showmen and market traders” 10.12.2016 (issue 5565, page 3-4)
published on www.neues-deutschland.de (published on 05.04.2017, under the heading: Private health insurance must advise on medical euthanasia)
www.procontra-online.de (published on 16.02.2017, under the heading: PKV: Chance for contribution reduction through euthanasia)
Page 1: http://www.procontra-online.de/artikel/date/2017/02/pkv-chance-fuer-beitragssenkung-durch-sterbehilfe/
Page 2: http://www.procontra-online.de/artikel/date/2017/02/pkv-chance-fuer-beitragssenkung-durch-sterbehilfe/?tx_news_pi1%5BcurrentPage%5D=1&cHash=bbf64adeb7aab1c5d518ca473f9f3a84
Page 3: http://www.procontra-online.de/artikel/date/2017/02/pkv-chance-fuer-beitragssenkung-durch-sterbehilfe/?tx_news_pi1%5BcurrentPage%5D=2&cHash=6f6636dd4205fc6faeb976adc6384d97
Page 4: http://www.procontra-online.de/artikel/date/2017/02/pkv-chance-fuer-beitragssenkung-durch-sterbehilfe/?tx_news_pi1%5BcurrentPage%5D=3&cHash=493f47415e29af31b6c31aa0374183a9
www.experten.de (published on 12.09.2017, under the heading: PKV must advise on medical euthanasia)
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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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