Claim of the organ donor for compensation for loss of earnings against the health insurer of the organ recipient under the Transplantation Act

Facts

Parties and facts:

The organ donor (hereinafter: the donor), born in 1979, donated a kidney to his sister in 2006. The organ removal led to nerve damage with permanent impairments, particularly in the left shoulder, as a result of which the donor could no longer fully perform his previous work as a house painter. The donor applied for benefits from disability insurance in 2009 but was only granted a degree of disability of 6% and no entitlement to retraining.

The organ recipient was insured with Innova Krankenversicherung AG at the time of the transplant, later switching to vivacare AG (from 2013), Sumiswalder Krankenkasse (from 2017) and finally Easy Sana Assurance Maladie SA (from 2023). The first two insurers made partial payments for loss of earnings incurred by the donor in connection with the organ donation. However, vivacare AG refused to make further payments for the years 2015 and 2016 as of 2015. Sumiswalder Krankenkasse rejected the donor’s claim for compensation for loss of earnings amounting to a total of CHF 938,390 (of which CHF 221,700 for the years 2015–2020 and CHF 716,690 for the period up to the donor’s 65th birthday) in a decision dated 26 July 2022 and a ruling on appeal dated 5 October 2022.

The donor filed an appeal with the Administrative Court of the Canton of Thurgau, which dismissed it in a decision dated 25 October 2023. The donor then filed an appeal in public law matters with the Federal Supreme Court, seeking an order for Sumiswalder Krankenkasse to pay appropriate compensation for loss of earnings.

Considerations

Legal classification of the claim:

The Federal Supreme Court first examined whether the donor’s claim for compensation for loss of earnings against the health insurer of the organ recipient had a basis in health insurance law (HIA) CO in transplant law. It found that the claim is not directly supported by the HIA CO the associated ordinance (HIBO). Although the original version of Annex 1, point 1.2 HIBO provided for compensation for the donor’s loss of earnings, this provision only applied until 2008 and was later superseded by the Transplantation Act. Since the Transplantation Act entered into force on 1 July 2007, Article 14(2)(b) Transplantation Act (TrA) regulates the compensation for loss of earnings and other expenses incurred by the donor.

Legal nature of the claim:

The Federal Supreme Court analysed the legal nature of the claim under Article 14(2)(b) TrA. It concluded that this claim is neither private law nor social insurance law in nature, but rather public law. Although the claim primarily serves to financially secure the donor, it is closely linked to the public-law regulated field of transplant medicine and the treatment of the organ recipient. The benefit is financed from the funds of the public-law health insurance and serves to promote willingness to donate organs, which is in the public interest. Moreover, the claim is not asserted within the framework of an insurance relationship between the donor and the insurer, but as an independent claim against the insurer of the organ recipient.

Intertemporal law and applicability:

The Federal Supreme Court examined which law…