Decision 9C_222/2023 of 18 December 2023

19 janvier 2024 – In its decision of 18 December 2023, the Federal Supreme Court rejected an appeal concerning the assumption of costs for the treatment of an aesthetic defect (scars in the shoulder area) under compulsory health insurance. There was no evidence that the cosmetic defect caused physical or psychological complaints with disease value.

A. had compulsory health insurance with Sanitas Grundversicherungen AG. On 4 November 2023, the doctor treating him contacted the Sanitas medical examiner and, due to therapy-resistant hypertrophic scarring on the cheek and shoulder, requested a cost approval for an excision with subsequent radiotherapy of the affected body parts, which was only granted for the scar on the cheek - not the one in the shoulder area. A. lodged an appeal in matters of public law with the Federal Supreme Court and requested that the costs of all scaring be covered by Sanitas.

The court determined that according to Art. 24 para. 1 in conjunction with Art. 25 para. 1 of the Federal Act on Health Insurance (HIA), compulsory health insurance covered, among other things, the costs of services that serve to diagnose or treat an illness and its consequences provided that the services were effective, appropriate, and economical (Art. 32 para. 1 HIA). It was noted by the court, that a purely aesthetic defect was not, in principle, one of the health risks insured under the HIA. However, aesthetic defects, particularly on visible and aesthetically sensitive parts of the body such as the face, could be considered pathological if they deviated significantly from the ideal or normal image and were consequently perceived as disfiguring. Whether an aesthetic defect is to be described as disfiguring is assessed according to objective criteria. This includes social perception. The extent to which the condition deviating from the norm has a negative impact on working life for aesthetic reasons can also be important. The excision and subsequent irradiation of the hypertrophic scars in the left shoulder and thorax area are indisputably not listed in Appendix 1 to the FDHA Ordinance on Compulsory Health Insurance Benefits (HIBO). It is also clear that the scars in question neither caused significant pain nor significantly restricted the complainant’s mobility. Nor is there any objection or evidence that the complainant’s working life would have been negatively affected as a result. Finally, the Federal Supreme Court found – in accordance with the lower court – that the scars could not be described as downright disfiguring when viewed solely from an objective perspective. Even if the relevant parts of the body could not be completely denied aesthetic relevance, they were not regions that were always visible or particularly sensitive in aesthetic terms, as had been affirmed by case law for the face, hands or neck, for example. The Federal Supreme Court therefore dismissed the appeal.

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