The fairy tale of the better private health insurance (PKV)


– Advantages of the statutory health insurance (GKV), which insurance brokers conceal –


A PKV insured gets his tumor on the neck, an optic nerve and half of his tongue removed. The subsequent proton therapy – costs up to more than 43 TEUR – may not be paid by the PKV. The employer’s personnel department had arranged PKV, with a monthly premium of up to more than 1,000 euros.

The wife, who is also insured under private health insurance, is then diagnosed with depression, but does not receive household help to support her in raising her children, who are not yet of school age.

One of the wife’s sisters is upset because her GKV pays for a home help after delivery without further ado, also the midwife for home birth, and would also pay for radiation therapy. The housewife is premium-free in the GKV family insurance. Children also do not cost a contribution.

Conventional medicine or alternative healing methods

In principle, only X-rays are medically necessary, unless they would be out of the question for good reasons, so it depends on how it is argued on the part of the doctor.

If it were not a method of conventional medicine, but a so-called alternative method of treatment, then the same effectiveness could be claimed and, in addition, the reimbursement could be reduced to the amount for a method of conventional medicine, see § 4 (6) MB/KK.

A home help and some other benefits are available in de PKV actually only in the basic tariff – hardly anyone finds out when he takes out a PKV. Actually, however, everyone should be informed about the difference to the basic tariff, or already about the GKV, so that in case of doubt the insurance agent and even more so the insurance broker are responsible.

Completed benefit commitment or closed aid catalogue

In contrast to the GKV, the PKV often has a so-called closed catalogue of medical aids. This, like all other benefits promised under collective agreements, may never be changed in any tariff – neither worsened nor improved. The benefits are guaranteed in private health insurance – this means that they can neither be worsened nor improved by the legislator or insurer. Because no trustee will ever agree to such an improvement in performance, because it would also cost more in premiums. On the other hand, under the Insurance Contract Act, deteriorations in benefits are generally permissible if, for example, the benefits have been greatly extended or have become more expensive, as an alternative to a premium adjustment – but guaranteed only with the consent of the trustee.

This means that the PKV only reimburses what was agreed as standard when the insurance was taken out. In contrast, SHI benefits adapt to technical progress – the legislator can also intervene here. However, only he can reduce benefits even after careful consideration. In private health insurance, on the other hand, you will regularly have to consider switching to a younger tariff, perhaps with more extensive benefits or a lower premium – but for additional benefits, a risk surcharge will be levied here for all illnesses that have occurred in the meantime – or they will be excluded.

The freedom of contract in the PKV allows it, for example, to omit the teeth completely, or to do without glasses, and this of course not arbitrarily, but only in such a way as insurers also offer. Without a dental tariff, however, the insurer will be able to refuse the subsequent tariff change pursuant to § 204 of the German Insurance Contract Act (VVG) into a so-called compact tariff “in one piece” – i.e. inseparably including dental benefits – for lack of the required similarity of the tariffs.

PKV often does not refund vital aids

The vital respiratory monitor would not even be an aid, but as a measuring device similar to a fever thermometer or bathroom scale, so never reimbursable unless specifically promised.

Other aids, such as the pacemaker or the heart valve, are explicitly included as such in the GKV. In the PKV these aids are not even contained in the catalog – is paid – hopefully – nevertheless, which one justifies with some PKV with the fact that aids concern only articles, which are not implanted. One can hope that one’s own PKV also sees it that way, but should not expect that they will take one’s word for it and also pay for a middle ear implant instead of a conventional hearing aid, without reference to the catalogue of aids.

Depending on the PKV tariff, the reimbursable remedies and aids and the scope of benefits can differ significantly in terms of maximum limits and percentage, also in comparison to GKV.

Lottery for private health insurance benefits?

The terms of insurance are an attempt to set out in words what you think you want to provide. The actual regulation of performance then represents a loose following of this, not necessarily of the wording and not even of logic, both being rather an expression of a rather imprecise idea of what one intends to do.

In individual cases, case law provides an interpretation, but often only for the individual case, or even declares a clause invalid. Any attempt to say something more precisely in the terms involves the increasing risk that it will end up slipping into ineffectiveness for whatever reason.

The attempt of the supervisory authority to replace the pharmacy, which does not exist abroad and from which a medicinal product must be obtained, by “a body legally authorised to dispense medicines” is a rather harmless reminder of Dr Murkes collected silence. The question of medical necessity, efficacy, excess, demarcation between orthodox medicine/alternative medicine etc. is first of all a question of medical fact – often with differing opinions.

Life organisation, for example fertility treatment and domestic help

In the case of reimbursement of services by private health insurance, the question of the treatment objective is the first question before the question of medical necessity, because it is this that determines medical necessity. In private health insurance, this is the cure, improvement or alleviation of an illness. It is not about prevention or otherwise compensating for the consequences, and not about life design. Therefore, it does not include, for example, household help or fertility treatment, which provides the child but does not change the illness at all, nor does it include benefits for hospice care for the dying in the case of incurable illnesses that are no longer improving, except for the part that directly alleviates the illness, i.e. the morphine, but not the expenditure for the other “organisation of life”. Only if expressly promised in the tariff, is also paid for it.

In the case of dental prostheses, however, it is questionable whether the goal by which medical necessity is measured is the restoration of the ability to chew, or also the optically flawless restoration.

Courts say very clearly that from the outset nobody may assume that everything is insured, and that therefore also occasionally essentials may be missing.

Strategic claims settlement and insurers’ duty to advise

It is not only the PKV customer who is confronted with the question of what is insured in the event of a claim. Insurers also regularly refuse to even consider or provide any information on “purely hypothetical cases” prior to filing a specific claim for benefits. Very often the customer is therefore left alone with the wording of the insurance conditions and may think, what it could mean concretely for him, so whether he gets the pacemaker listed in the GKV as aids, if that is missing in his PKV in the aids catalogue.

In contrast, private health insurers are also obliged to advise customers as soon as they recognise a need for advice, § 6 VVG, including liability for incorrect advice. And of course, information from the insurer must be accurate, in that the medical treatment goals and diagnoses are questioned, instead of, for example, a proton therapy initially being rejected across the board – and the PKV waits to see whether the customer himself will ever get back to us with more detailed reasons. Customers should therefore consider, in case of doubt, simply expressly requesting advice from the insurer in accordance with § 6 VVG, which the insurer must also provide if it has a detrimental effect on the customer.

Unclear insurance conditions and risk exclusions

In its ruling of 8 May 2013, the Federal Court of Justice (BGH, Case No. IV ZR 233/11) once again decided that insurance cover may not be reduced further than the apparent purpose of a risk exclusion clause requires. “The average insured need not expect gaps in coverage without the clause making that sufficiently clear to him.” In the event of a claim, this interpretation, which is favourable to insurance customers, also applies to the interpretation of insurance conditions for professional risks of freelancers and tradesmen.

Sometimes PKV-insured persons are pleased when they have again obtained insurance cover at the level of the basic insurance via a GKV and additionally retain individual PKV tariffs, including the option of a tariff change to optimise the benefits. But this can also turn out to be a momentous mistake.

PKV-insured do not have to die on waiting list

Thus, PKV-insured patients often do not have to put up with the waiting list for transplant organs allocated by Euro-Transplant. Thousands of patients on the waiting list die every year because an organ is not available in time. For the private patient with sufficient insurance cover also for abroad, on the other hand, the fact of health damage by waiting for an allocation according to the waiting list is sufficient to receive an organ transplantation from his insurer in non-European countries, for example, where Euro-Transplant is not active.

There is a brisk organ trade there and a rapid allocation for paying private patients. Most PKV tariffs must pay for this, even if there are “moral concerns”. Moreover, these are unfounded, since in many countries hospitals are capable of organ removal but do not have the qualifications for implantation, so that international trade is inevitably required. In addition, the private patient who has an organ transplant performed outside Europe frees up his place on the waiting list for a SHI-insured person, who thus has a better chance of survival. So it is more a question of morality whether private patients really want to take away the place on the waiting list of a SHI-insured person for the organ transplantation, although this could be avoided.


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


by courtesy of (March 2015 issue)


published on 09.01.2015 in P.T. Magazine

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Dr. Johannes Fiala Dr. Johannes Fiala

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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