Internal insurance doctors are biased

A recent dissertation reveals the systematic bias of medical services of the IV, Suva and compulsory health insurance schemes. What many practitioners and insured persons observe with an uneasy feeling has now been scientifically substantiated. In her research paper (Aleksandra Milosevic, Die (Un)vereinbarkeit der Ausgestaltung medizinischer Dienste mit der Verfahrensfairness, Diss. Basel 2023) concludes that the integration of medical services into the insurance system does not fulfil the right to assessment by an impartial authority as part of the fundamental procedural right to equal and fair treatment under Art. 29 para. 1 BV.

In her dissertation, Dr. Milosevic examines the question of whether the extensive functional and organisational integration of medical experts into the insurance organisation - disability insurance, Suva and compulsory health insurance - constitutes a systematic violation of the right of insured persons to have their case assessed by an impartial authority (Art. 29 para. 1 BV). Due to the specific integration of the RAD, the insurance medical service of Suva and the trust medical services of the health care insurances, there is a systematic bias, which is why the services should be outsourced.

The argument is based on the enormous importance of internal insurance opinions. Assessments by internal insurance doctors on relevant evidentiary issues - ability to work, causality, etc. - would decisively determine the direction of the proceedings. The same applies to the assessment of an expert opinion obtained from an external body by the insurance company's internal medical service. The legal profession knows how unequal the playing field is when assessing such expert opinions and what influence an expert criticism from a medical service has.

The author also points out that the courts are hardly in a position to recognise objective and technical deficiencies in formally correct medical opinions. In addition, there is often a large number of variants in medical matters and the medical categorisation can vary. Due to these factors, judicial review of the authority's decision is only possible to a limited extent. As a result, the internal insurance assessment often becomes the only, or at least the decisive basis for the decision.

Due to the great importance of internal insurance opinions, the limited possibility of review by the courts and the wide scope for assessing a medical issue, the author concludes that the internal insurance doctors have a judge-like function. This situation makes it necessary to apply the same standards to internal doctors as to external experts or judges. It also points out that internal and external insurance experts fulfil the same function and are therefore bound by the principles of the rule of law. A distinction in the assessment of dependency is therefore not justified. The consequence of this is that insurance-internal medical experts, just like external experts, should be organised in the sense of a self-governing company.

The author emphasises that economic dependence alone is not decisive for systematic bias. This only arises as a consequence of other, additional circumstances. The author has analysed the specific dependency relationships in the medical services of the IV, Suva and KVG insurers.

In the case of the members of the RAD, she mentions, among other things, the economic dependency, the lack of effective physical separation of the RAD doctors from the IV office, possible personnel overlaps with employees of the IV office, the supervisory and directive powers of the BSV in their concrete form and the pressure to save money in disability insurance. It also points out that the doctors' identification with the interests of the company is favoured. This has the consequence that a RAD member is not unbiased in the face of an individual claim when it comes to questions of judgement in the sense of identification with the general interests to be protected. The author recognises mitigating circumstances in the RAD's lack of power of disposal and the high factual requirements for the dismissal of an internal expert. However, these circumstances do not sufficiently counteract the risk of bias. The functional and organisational integration of the RAD, in combination with the economic dependence, justifies objectively justified doubts about the professional and unbiased activities of the RAD doctors.

With regard to Suva, the author emphasises the one-sided, spatial and factual embedding. In combination with the financing situation - despite being a non-profit organisation - a strong identification with the employer can take place and thus a certain pressure to perform and succeed can be encouraged. Even if no pressure is actually exerted, the circumstances mentioned would objectively suggest the appearance of bias. In the case of Suva doctors, the author therefore also sees objectively justified doubts about their professional and unbiased activities.

The dissertation takes up an old topic of dispute. Experience has shown that insured persons are sceptical about reports from internal medical services in the event of negative decisions. The bias of internal insurance doctors or the credibility of their statements leads to many legal disputes. The Federal Supreme Court has so far refused to respond to the criticism in the doctrine with the terse remark that economic dependence alone is not sufficient to justify bias. However, it has refrained from discussing dependence in combination with other circumstances. In practice, this means that the bias of an insurance company's own doctor is rarely affirmed. This practice is in stark contrast to public perception and fails to recognise the obvious high level of mistrust that arises against insurance doctors as a result of their integration into the insurance organisation. This mistrust leads to many and protracted legal disputes. The fact that a research paper has now also revealed systematic bias makes us sit up and take notice. It is now time to completely spin off the medical services and transform them into independently managed organisations. This would eliminate the de facto dependency relationships, at least to a certain extent. The author proposes creating a unified group of doctors in neutral centres under multipartite management.