Decision 9C_326/2023 dated 20 July 2023

10 agosto 2023 – 11 August 2023 – A. has compulsory health insurance with CSS Versicherung (“CSS”). He suffers from Dupuytren's contracture (Morbus Dupuytren). On 1/2 June 2022, A. had Duputryen's disease treated in Austria by injection of the drug “B.A./B.B”. The health insurance company Arcosana AG (today: CSS Insurance) refused to cover the treatment costs in the amount of 6,389 euros for two reasons. On the one hand, at the time of treatment, the treatment had no longer been authorized in Switzerland and was no longer subject to compulsory insurance; on the other hand, the treatment abroad could not be covered based on Art. 36 of the Ordinance on Health Insurance (Verordnung über die Krankenversicherung, KVV) as an exception to the principle of territoriality. The Social Insurance Court of the Canton of Solothurn dismissed A.’s appeal. A. appealed against this decision to the Federal Supreme Court and requested, among other requests, the assumption of costs regarding the Dupuytren contracture.

The court stated that the drug “B.B.” was withdrawn from the market in Switzerland in 2020 but continues to be available in Austria under the name “B.A”. The alternative treatment in Switzerland is a surgical method (open strangulated excision), which does not entail significantly greater risks and ensures appropriate treatment.

Within the framework of compulsory health insurance, insurers may not assume any costs other than those for the benefits pursuant to Art. 25-33 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). These benefits include, among others, medicines prescribed by a doctor (Art. 25 para. 2 lit. b KVG). Exceptionally, treatment and follow-up costs incurred abroad are reimbursed in case of an emergency (Art. 36 para. 2 KVV) or if the medical treatment cannot be provided in Switzerland (Art. 34 para. 2 lit. a KVG, art. 36 para. 1 KVV). For there to be a lack of treatment within the meaning of Art. 36 para. 1 KVV, there would have to be a serious “gap in care”, for example if there is no Swiss treatment option at all or if the therapy practiced in Switzerland entails substantial and significantly higher risks compared to the foreign treatment alternative, so that appropriate treatment in Switzerland is not guaranteed.

The Federal Supreme Court denied the assumption of costs on the grounds that the treatment with the drug “B.B.” was associated with considerable side effects. Also, the drug “B.B.” was no longer approved in Switzerland under medicinal product law. The Federal Court concluded that the alternative surgical method (open excision) was in any case not riskier than the treatment with the drug “B.B.” and could be regarded as an appropriate treatment in Switzerland. Therefore, there is no exception according to Art. 36 para. 1 KVV, which would oblige CSS to assume the costs. Likewise, there is no case of emergency in the sense of Art. 36 para. 2 KVV. In addition, the Federal Supreme Court stated that there was no legal basis for the assumption of costs. In principle, the reimbursement obligation only extends to medicinal products that are included in the list of pharmaceutical specialties (Spezialitätenliste, SL) of the Federal Office of Public Health (Art. 52 para. 1 lit. b KVG). If not in the SL, it can still be reimbursed in exceptional cases if the conditions according to Art. 71a ff. KVV are met. In this case, no such exception applies.

The appeal was dismissed.

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