Private health insurers often refuse treatment on the grounds that a consultant dentist/doctor's evaluation of the submitted treatment documents has shown that the treatment is not medically necessary. In the majority of cases, these reports are drawn up without the consultant having physically examined the patient. In the past, private health insurers have countered patients' justified requests for access to the expert opinion of the consulting dentist/doctor with the argument that, as no physical examination of the patient had taken place, they were not obliged to disclose the results of the assessment and the name of the expert. Moreover, it was not a question of an expert opinion being obtained but of an internal review of the obligation to pay benefits.
In its ruling of March 10, 2003, the BGH put a stop to this practice of refusal. In its opinion, private health insurers must submit expert opinions obtained by them to a doctor to be named by the policyholder, stating the identity of the expert, even if no physical examination has taken place.
According to § 178 m VVG (Insurance Contract Act), the policyholder has a claim against the private health insurance company for information about and access to expert opinions that the insurer has obtained in order to assess its obligation to pay benefits regarding the necessity of medical treatment.
According to the BGH, this provision is to be understood as meaning that the policyholder's right of inspection does not depend on whether or not a physical examination has taken place. If the insurer has obtained an expert opinion from an external expert to examine its obligation to pay benefits, it is obliged to disclose this information, even if the expert opinion serves to examine the insurer's obligation to pay benefits, i.e. for internal purposes.
The BGH is of the opinion that only comprehensive knowledge of the content of the expert opinion and the author enables the policyholder to assess whether a claim for reimbursement of the costs exists or whether the prospects of success of an action against the insurer are to be affirmed.
