(May 17, 2017) On May 11, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to accept a case for review that challenged a lower court’s decision not to obligate the applicant’s statutory health insurance to pay for intravenous immunoglobulin therapy (antibody infusions) not covered under her plan, to treat her autoimmune disease. (BVerfG, 1 BvR 452/17, May 11, 2017, BVerfG website (in German).)
The applicant was diagnosed in 1993 with systemic lupus erythematosus (SLE), an autoimmune disease that is associated with several complications and secondary diseases. In 2008, she was diagnosed with urticarial vasculitis, which causes swelling of the tongue that can lead to suffocation. (Id. at 2.) In October 2009, she requested that her statutory health insurance reimburse the costs for an “off label” use of immunoglobulin to treat the tongue swelling, as other therapies had proven unsuccessful. (Id. at 3.) The treating hospital stated that the treatment was strongly indicated to avoid the general risk of suffocation and that the patient had a diminished quality of life and had to carry an emergency kit with her at all times. (Id.) The statutory health insurance refused to reimburse her for the costs, because it felt that the requirements for an off label use of the medication were not fulfilled. (Id. at 4.)
The Constitutional Court held that a direct constitutional right to receive a reimbursement from one’s health insurance for treatments not generally covered is an exception and has to be narrowly interpreted. The Court reiterated that such a constitutional right derives from the principle of general freedom of action (art. 2 ¶ 1), the social state principle (arts. 20 & 28), and the right to life (art. 2 ¶ 2, sentence 1) codified in the German Basic Law. (Id. at 22; Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).) According to the Court, the constitutional right to reimbursement only exists if the patient’s statutory health insurance does not cover any treatment methods for the patient’s life-threatening or generally fatal disease. Moreover, the therapy chosen by the patient must promise more than just an abstract chance of recovery; there must be a possibility supported by evidence that it will at least positively impact the symptoms of the disease. In addition, the right to reimbursement for such a treatment is limited to near-death, individual emergency situations. (BVerfG, supra, at 22.) Without such an emergency situation, the Court stated, there are no sufficient grounds to override the legislative discretion to set out the conditions for statutory health insurance. (Id. at 25.) In the Court’s view, the applicant did not sufficiently substantiate that such an emergency situation existed. (Id. at 26.)