Decision 9C_615/2021 dated 31 January 2023

17 février 2023 – The appellant A. is compulsorily insured with KluG health insurance (KluG). Due to gender dysphoria in the sense of male-to-female transsexuality, A. underwent various facial feminisation surgeries (FFS) at the Clinic B. in Belgium. KluG refused to reimburse the resulting costs on the grounds that comparable treatment was available in Switzerland. A. appealed against this decision.

The reimbursement of treatment costs incurred abroad requires, among other things, that the treatment cannot be provided in Switzerland (Art. 34 para. 2 of the Health Insurance Act [Bundesgesetz über die Krankenversicherung, KVG] in conjunction with art. 36 para. 1 of the Ordinance on Health Insurance [Verordnung über die Krankenversicherung, KVV]). Only serious gaps in the treatment offer justify a deviation from the territoriality principle. The medical reasons permitting a deviation from the territoriality principle are to be defined narrowly. Merely minor, difficult to assess or even controversial advantages of a treatment method practiced outside Switzerland, but also the greater experience a specialised clinic abroad has in the relevant field, do not constitute a sufficient medical reason. This cautious practice is also adhered to in very rare therapies, the Court decided in another case concerning a gender dysphoria (BGE 145 V 170). However, if the domestic treatment offer exposes the insured to an unreasonable risk due to a lack of specific practice, there is also a gap in coverage, the Court further held.

In the present case, the Court summarised that a corresponding treatment offer existed in Switzerland. In doing so, the Court primarily relied on information obtained from two hospitals. The fact that not all or the same surgical methods used abroad are also offered in Switzerland is no obstacle. There is no entitlement to a specific provision or even the best possible care abroad. Furthermore, the Court held that the appellant was not exposed to any objectively unreasonable surgical risk in Switzerland. As the data of the requested hospitals show, facial feminising surgeries are performed on a regular basis. If a high standard were applied to Switzerland in the field of highly specialised medicine to achieve and maintain the required expertise, and minimum case numbers of between 15 and 25 were considered reasonable, these would also be achieved. The fact that foreign hospitals have higher case numbers and thus greater experience in the field is not decisive.

In summary, the Court held that there was no gap in the Swiss treatment offer. The appeal was dismissed.

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