With a judgment of November 4th, 2020, the Dortmund District Court condemned a private health insurance company to reimburse the Phonak Naida V50 hearing aid that my client bought in full and also to fully cover my legal costs.
The pensioner, born in 1946, has full private health insurance with the defendant. According to the insurance conditions, aids are 100% refundable. Insured event is the medically necessary treatment of an insured person due to illness. Hearing aids are fully reimbursable if medically necessary. The client is profoundly hard of hearing in both ears, on the verge of deafness.
He was prescribed a new hearing aid in May 2018 because his old Phonak hearing aid was defective. Over a period of four months, the client, together with his hearing aid acoustician, tested a total of eight hearing aids. 17 adjustment sessions were necessary. Nevertheless, no hearing aid was found with which the client could hear even remotely as well as with his seven-year-old Phonak Ambra SP. On the contrary: with all tested devices that were supposed to be equipped with new, supposedly better chips, he heard worse. In particular, the noises in everyday life were unbearable for him and prevented active listening. He therefore opted for the Phonak Naida V50 hearing aid, which is extremely large compared to modern devices – and even compared to his old hearing aid – and is still equipped with an older generation chip. The large design, however, had the advantage that larger speakers and microphones are built in, which had a positive effect on speech intelligibility.
The plaintiff had to pay 3,970 euros for the new device. Private health insurance only paid an amount of 2,600 euros, leaving a difference of 1,370 euros. The new Phonak Naida V50 hearing aid is not medically necessary in terms of the insurance conditions. A hearing aid that looks after the client just as well can be obtained for 999 euros. The Phonak Naida V50 has various additional functions that the client does not need at all. He was oversupplied with the device.
In the lawsuit, I argued: The insurance company wrongly rejected the medical necessity of the hearing aid. Expenditures for a hearing aid prescribed by a doctor only exceeded the medically necessary amount within the meaning of § 5 MB / KK 2009 if on the one hand the aid has additional, unnecessary functions or features and on the other hand cheaper hearing aids are available at the same time (BGH, judgment of 22.04 .2015, AZ: IV ZR 419/13). The insurer must explain and prove that certain functions or features are not medically necessary for a device that is necessary in itself. The insurer has to prove excessive treatment (see also LG Regensburg, judgment of 07/07/2009, AZ: 2 s 311/08, Brockmüller, r + s, 2016, 377 ff.).
The judicial expert had confirmed: The patient had a very significant hearing loss, which was also progressing. He had worn a Phonak device for years and got used to this sound. He observed very often in patients that they stayed with a brand that was chosen once for years.
In any case, a hearing aid must still have certain reserves because the client’s hearing loss is progressing. These reserves are not available in the PD 160 device proposed by the insurance company. All modern hearing aids have additional functions, most of which are not needed. The hearing loss is on the verge of deafness. A cochlear implant (hearing prosthesis for the deaf and deaf, whose auditory nerve is still functional as part of the organ of auditory perception) is indicated.
Such a supply costs at least 20,000 euros. The indication for such an implant was given by the plaintiff. In terms of the degree of hearing loss, the selected Phonak device is still the best among hearing aids. Overall, however, every hearing aid is rather bad for the plaintiff because his hearing ability can only be insufficiently increased with it. The device prescribed for him and bought by him is medically necessary in terms of the insurance conditions of the insurance company.
(Dortmund District Court, judgment of November 4th, 2020, AZ: 404 C 4473/19)
Christian Koch, specialist lawyer for medical law & traffic law
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