Federal Administrative Court, Decision C-4780/2019 of 1 March 2021

15. März 2021 – The Federal Administrative Court had to assess whether the decision of the Transplant Centre of the University Hospital Zurich (USZ) not to include the appellant on the transplant waiting list violated federal law.

The lower court considered that the proposed lung transplantation was too risky (morbidity / mortality) in view of the patient's general state of health, from which no potential improvement could be expected, and the fact that no significant improvement in his abilities had been noted despite the rehabilitation stay. The Commission therefore refused to place the patient on the waiting list because the following three contraindications were considered permanent: (i) Marked deformity of the chest; (ii) malnutrition and severe underweight; and (iii) significant deconditioning with generalised muscle weakness.

However, as the Federal Administrative Court stated, the lower court's overall assessment of the state of health of the appellant was based on erroneous values regarding the appellant's BMI and underweight. Thus, the contested decision, although based on medical considerations, did not guarantee a uniform and non-discriminatory application of the criteria for inclusion in the waiting list to a patient with a particularly vulnerable health condition. Consequently, the appeal was upheld by the Federal Administrative Court and referred back to the lower court for a new decision.

For the full decision, see here.