Decision 149 II 381 of 18 September 2023

15 marzo 2024 – In its decision of 18 September 2023, the Federal Supreme Court ruled that the mere fact that a dispute concerns the uneconomic practice of a doctor ("over-doctoring") does not constitute grounds for obliging the losing party to pay the party costs of the successful health insurance company. This is a change in practice regarding the payment of party compensation pursuant to Art. 68 para. 3 of the Federal Supreme Court Act (Bundesgerichtsgesetz, BGG).

CSS Krankenversicherung AG and other health insurance companies filed several lawsuits against A., who ran a practice for pediatric and adolescent medicine. By judgment of the cantonal arbitration court of 3 March 2023, A. was warned of exclusion from activities covered by compulsory health insurance and was obliged to repay a total of CHF 877,646.00 to the various plaintiffs for the years 2013-2016. A. requested that the cantonal arbitration court’s decision be set aside and the claims dismissed or, in the alternative, that the matter be referred back to the arbitration court for further consideration. The Federal Court dismissed the appeal.

The Federal Supreme Court held that insurance companies providing compulsory health insurance are organisations entrusted with public-law tasks within the meaning of Art. 68 para. 3 of the BGG. The question was whether the prevailing health insurance companies are entitled to reimbursement of their party costs in proceedings concerning uneconomic medical practice by a doctor. The court held that a concentration process had taken place among health insurance companies, resulting in a decreasing number of small health insurance companies. Health insurance companies can nowadays rely on the support of their associations in litigation. The complexity of the legal issues at stake and the potential burden on the community or on organisations entrusted with public tasks are hardly sufficient reasons to derogate from Art. 68 para. 3 of the BGG. The court ruled that the party costs of the health insurance companies may not be imposed on the losing party.

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