From October 2013, European Union member states are obliged to adopt the new European
rules allowing patients to search for health care abroad at the costs of the national
authorities. The so-called cross-border care Directive (2011/24/EU) facilitates therefore
patient mobility in the European Union (1). But only in case a certain treatment option
is not (timely) available, or not equally effective in the country of residence, and
when the treatment requested is among the benefits of the home member state. This
new regime incorporates previous cross-border care rulings of the European Union’s
Court of Justice, which are the main reason of this new Directive. Whereas member
states are still in the process of transposing the Directive into national law, a
new ruling from this Court has further triggered patient mobility with considerable
consequences to low income countries.
The Petru case (2,3)
Ms Elena Petru had been suffering for some years from a serious cardiovascular disease,
for which she underwent a surgical operation. Since her situation deteriorated she
was admitted to the Timisoara Institute for Cardiovascular Disease, Romania. After
medical examination, the treating physician suggested an open heart surgery in order
to replace the mitral valve and insert two stents. In the belief that the hospital’s
infrastructure was inadequate for such a procedure, Ms Petru went to a German clinic,
where the surgery was carried out. The total costs of the surgery and post-operative
hospital expenses were € 17 714. Before going to Germany, Ms Petru required permission
from the national health insurance agency for receiving health care abroad, which
was denied for the reason that there was no indication since the treatment sought
could be provided in Romania within a reasonable time period. Subsequently, Ms Petru
lodged a complaint against the national health insurance agency, claiming full compensation
for the costs of treatment in Germany.
In a special procedure (“preliminary ruling”), the European Court needed 1 page to
decide that Ms Petru should be fully compensated, meaning that the Romanian authorities
were responsible for cost reimbursement of the health care services provided, even
when the treatment option is available on the Romanian territory. As such, the European
Court extended EU citizens’ right to cross-border care which is not without consideration.
What is of importance are the circumstances of this particular case. First, the intervention
was covered by Romanian health insurance law, therefore considered as an ensured benefit.
Second, Ms Petru claimed that due to the lack of medication and basic medical supplies
and infrastructure, the treatment could not be provided timely in Romania taken into
account her current state of health and the probable course of the disease. According
to the Court, such lack of medicines and medical supplies can make it impossible to
perform the treatment in good time. As a matter of principle, the Court accepted that
argument and therefore ordered Romania to reimburse the health care costs abroad.
The outcome might have been different when the same or effectively similar treatment
would be available in another Romanian hospital in good time, but that was not the
case.
Individual patient’s victory but….
With this case, the Court confirmed its previous rulings on the patients’ right to
receive health care abroad, while taking into account all the relevant circumstances.
What is new, is the timely available treatment argument, interpreted as absence of
medicines and medical supplies. This interpretation means a further extension of the
patient mobility concept in the European Union.
Although one may welcome such a patient friendly outcome, it also raises concerns
about the sustainability of particularly low income countries, being confronted with
widespread shortages in basic health care resources. Structural shortages of medicines
and medical supplies are not uncommon in these countries and therefore justify a more
specific approach but the Court was silent about that aspect. Instead, the Court’s
top advisor, Advocate General Cruz Villalon suggested to differentiate among occasional
and more structural shortages. In case of incidental shortages of supplies, prior
authorization for cross-border health care by the home member states cannot be denied,
whereas in case of “systemic deficiencies,” ie, structural and prolonged shortages
of medicines, medical infrastructure and medical staff, refusal of authorization is
allowed since the domestic health financing system cannot afford a mass-exodus of
patients in need of medical care. The systemic deficiency scenario limits therefore
patient mobility for reasons of public interest, ie, safeguarding the long-term sustainability
of the national health care system.
In this particular case, the Court could leave aside the advisor’s opinion since it
was not explicitly argued by the Romanian government. It is however a matter of time
when the Court will be forced to address the systemic deficiency argument raised by
member states in a similar position. So, despite the new cross-border care regime,
this patient mobility debate will continue at the European Court.