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Disease therapy that is not approved remains the exception

Disease therapy that is not approved remains the exception


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Federal Constitutional Court: No right to an effective emergency medication
Karlsruhe (jur). The Federal Constitutional Court has emphasized the exceptional nature of a claim for benefits by the insured beyond the list of benefits provided by statutory health insurance. This presupposes an "individual emergency characterized by near danger to life", according to a decision published in Karlsruhe on Thursday, May 11, 2017 (file number: 1 BvR 452/17). According to the specific case, such an emergency does not exist if life-threatening occurrences can be eliminated by emergency medication.

The applicant suffers from an autoimmune disease and an inflammatory skin disease. As a result, the tongue may swell, causing a choking hazard. To counter this, the woman always carries an emergency kit with her. However, all attempts to cure the disease have failed.

She therefore asked her health insurance company to cover the costs of treatment with immunoglobulins. These are antibodies obtained from donations of blood that are introduced into the bloodstream via the vein. However, the health insurance company refused to assume the costs. Immunoglobulins are not approved for their disease.

With her complaint, the woman based herself on the so-called Nikolaus decision of the Federal Constitutional Court of December 6, 2005 (file number: 1 BvR 347/98). In the case of life-threatening illnesses, the health insurance companies will also have to pay for alternative or other healing methods outside of their regular range of services if they promise “a prospect of healing or relief that is not entirely distant”.

The Federal Social Court (BSG) in Kassel had dismissed the lawsuit - and rightly so, as the Federal Constitutional Court has now confirmed.

In doing so, the Karlsruhe judges affirmed the possibility of exceptions beyond the health insurance benefits catalog. At the same time, however, they referred to the legislator's broad scope in the design of the healthcare system. A claim that can be derived directly from the constitution is therefore limited to "emergency-like situations" in which patients "have to reach for all available medical help".

Here, however, emergency medication "can be used to deal with the danger to life with sufficient certainty". Therefore, there was "an emergency-like situation and therefore sufficient reasons to override the legislative scope for structuring the right to benefits under statutory health insurance through a claim derived directly from the constitution," said the Federal Constitutional Court in its decision of 11 April 2017. mwo // fle

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