He went to court with the conviction that in the event of a sudden emergency to life, the law guarantees financing of treatment in every medical entity that will provide the service. But cancer treatment is a life-saving service, without a doubt, not a sudden one. For the National Health Fund and the courts, such an interpretation was obvious. For a patient who fights for life and health, no.
The case concerns a man who underwent three operations related to the excision of a malignant tumor located in the oral cavity. Initially, he wanted to be treated in the public health service, but, as he explains, this proposed such long dates for procedures under health insurance that, not wanting to risk his life and health, he underwent surgery in a private medical facility specializing in this type of cases.
“Urgent surgical treatment was required due to the immediate and sudden threat to health, the waiting time for services provided in facilities operating under a contract with the National Health Fund was too long in relation to the rate of cancer development and would lead to loss of health, and in addition, the planned treatment would result in permanent and irreversible mutilation “- we read in the materials of the case.
As the patient emphasizes, the quality of services was also a very important factor. He explained that the facility that provides services under universal health insurance offered him to excise the tumor without reconstruction, which would result in the patient having to wear a mobile obturator, which would “deprive him of work and will to live”. In a private facility, reconstruction was immediately proposed.
After the treatment was completed, the patient applied to the National Health Fund for reimbursement of the costs incurred.
In the course of the proceedings, the National Health Fund determined that the patient required urgent surgical treatment, but the state of health did not meet the conditions of a state of emergency. I refused to reimburse.
“The services provided to the complainant were provided for a fee on a commercial basis, outside the general health insurance system, without the waiting list. In the opinion of the President of the National Health Fund, this meant that the complainant made a conscious decision to treat outside the general health insurance system,” we read in the position of the National Health Fund.
– The Act of 27 August 2004 on health care services financed from public funds does not provide for the possibility of reimbursement, at the request of the insured, of the costs of services provided in the country outside the health insurance system, therefore it is impossible to directly reimburse the fees paid for the services provided – says Interia Sylwia Wądrzyk, director of the Social Communication Office of the National Health Fund. – The provisions of the act do not allow the NHF to finance services provided against payment in healthcare entities that do not have a contract with the National Health Fund – he adds.
He does not explain why urgent cancer treatment is not equated to a sudden threat to life.
The patient did not agree with the negative decision. Stating that the treatment in a private facility was dictated by necessity and not a whim, he referred the case to the Provincial Administrative Court. He argued that in his case the interpretation of “emergency” was unfairly narrowed by the National Health Fund, because there was a health emergency, and it was not possible to provide the service by another service provider who had a contract with the National Health Fund.
The Provincial Administrative Court in Warsaw, however, supported the arguments of the National Health Fund and ruled that the legislator did not provide for the reimbursement of costs of healthcare services provided in the country in situations other than emergencies.
It also found that the constitutional right to equal access to health care services financed from public funds did not mean that the constitution assumed universal access to all health care services known and used in accordance with the current state of medical knowledge. Because the conditions and scope of benefits are to be regulated by law. And this does not provide for the possibility of reimbursement of the costs of treatment performed privately.
The last resort was the Supreme Administrative Court. But here too the patient died.
– On December 7, the Supreme Administrative Court dismissed the cassation appeal against the judgment of the Provincial Administrative Court in Warsaw, which dismissed the appeal against the decision of the President of the National Health Fund of June 30, 2020 regarding the discontinuation of the proceedings under the application for reimbursement of costs incurred in connection with private treatment – Interia was informed by judge Sylwester Marciniak, press spokesman of the Supreme Administrative Court.
When asked about the exact motives of the court decision, he added that at present it is not possible to present them, because the written justification of the judgment has not yet been prepared.
– The court has 30 days to do so, counting from the date of the judgment – judge Marciniak explained in response to our questions. At the same time, he pointed out that the Supreme Administrative Court fully shares the arguments of the voivodship court.
Lawyers commenting on the case for Interia emphasize that a different judgment could not be reached under the current legal status. Although it has little to do with the patient’s well-being.
– The patient needed urgent treatment. Oncological treatment should be started as soon as possible, without undue delay, but his condition was not an emergency requiring immediate attention. The terms urgent and emergency are not identical, says Ewelina Miller, attorney-at-law to Interia, specializing in medical law cases.
The lawyer adds that currently the National Health Fund has no legal basis to reimburse the patient for costs incurred as part of private treatment.
– There is no provision that the NHF could refer to when reimbursing a patient. However, such a regulation should be introduced, especially taking into account the waiting period for obtaining a health service under the National Health Fund. The patient should be able to benefit from private treatment in certain cases, when he actually requires urgent treatment – explains Ewelina Miller.
– It should be emphasized that, according to the constitution, the Polish state should ensure every citizen the right to health protection. Unfortunately, while fighting the disease, patients often struggle with inaccuracies in the health care system and problems with the interpretation of numerous, often completely detached from each other legal regulations, constituting the so-called medical law. The multitude of legal regulations and their ambiguity causes difficulties both for patients, medics, and often for legal professionals, says advocate Bartłomiej Pawłowski from the Duraj Reck i Partnerzy Law Firm.
– In practice, the actual burden of assessing whether a given patient requires immediate assistance or can await treatment by introducing them to the waiting list for services rests with the doctors who, based on medical considerations, determine the order in which services are provided – explains advocate Daniel Reck from the Duraj Reck i Partnerzy Law Firm.
Bartłomiej Pawłowski points to one of the age-old obstacles, the overcoming of which could change a lot for patients.
– One of such barriers, which has not gained sufficient interest from the legislator for years, is enabling patients, i.e. recipients, to co-finance surgical procedures, which would have a real impact on the treatment process, thus being able to e.g. accelerate the procedure in a situation where the system is inefficient, e.g. when the planned fully reimbursed procedure would be performed only in a few years. As well, it would be possible to use, through an additional payment, medical procedures of the expected standard – explains attorney Pawłowski.
Experts’ opinions are confirmed by the report of the Supreme Audit Office “Health care system in Poland – current state and desired directions of changes”, which indicates that the health care system in Poland is not patient-friendly.
“The results of numerous NIK audits carried out in recent years indicate the need to urgently take action both in terms of financing and organization of the health care system,” reads the report.
According to the Supreme Audit Office, negative assessments of the health care system result mainly from the long waiting time for receiving the benefit. This is confirmed by the data of the report “Assessment of the Polish health service” carried out in April 2021 by Kliniki.pl. The study assessed public and private health care facilities and personnel. What is the worst assessment of public health patients in the context of facilities is the waiting time for admission or consultations – 38%. respondents are dissatisfied with it.
The report “Health at a Glance 2021” shows that despite the lower incidence of malignant neoplasms than in most European countries, mortality in Poland is one of the highest among OECD countries – 228 deaths per 100,000. inhabitants, with an average of 191 deaths per 100 thousand. population. In the statistics, we are in fourth place, behind Hungary, Slovakia and Latvia. The cancers in which we have the most to catch up in diagnosis and treatment include, among others cervical cancer, melanoma and breast cancer.
Today, Minister Adam Niedzielski announced the assumptions of the reform of Polish hospitality.
– It is a set of regulations ensuring, among others, high quality of services from the patient’s point of view and professionalisation of hospital management – explained the Minister of Health at the conference announcing the changes.