Case 660/2009

This case concerned social security reimbursement for private health care in Spain. The plaintiff suffered from an eating disorder, a personality disorder, and alcoholism. She sought treatment through Spain’s public health service for years. She was eventually discharged and referred to a public hospital, where she spent a year. She then sought reimbursement for the cost of private healthcare services she had obtained at the advice of a doctor from the public healthcare system. Her request for reimbursement was denied.

The plaintiff first sued the Health Managing Area of the Primary Health Care of Burgos for reimbursement, and she was denied.  She then appealed under article 43 of the Spanish Constitution, which protects the right to health and imposes positive obligations on the State to protect the right to health, Article 53.3 of the Spanish Constitution, and Article 7.1 of the Civil Code.

The court held that the plaintiff was entitled to reimbursement. The court reasoned that, under Article 53.3, if the public health service was incapable of providing treatment, then a patient is entitled to reimbursement for private care, provided that the patient was referred by a public health service official.

The court found that the denial of reimbursement was an unconstitutional violation of her right to health. It rejected the argument that the plaintiff’s long-term care at a public health provider removed her entitlement to reimbursement.

The court also held that the civil code also applied favorably to the plaintiff because she acted in god faith seeking out a private health care provider. They ruled this way because plaintiff was following the recommendation of her prior public physician.

“[I]t is clear that this illness cannot be treated by the Public Health Services, as it was proven by the fact that she was referred to the Jimenez Diaz Foundation initially, and afterward, on the basis of the advice of the psychiatrist who has always treated her within the Social Security, to the ITA, in such a way that only the latter treatment is revealed as a possible cure of the patient. Therefore, if it's not possible to use the Public Health Care to protect a legal good considered** as fundamental, such as health- because there are no specialized organs in the Public Health Care-, and the beneficiary has to turn to Private Health Care, it seems clear that there's a deficiency in the Public Health Care that shall lead to the necessary reimbursement of the incurred medical expenses by the party. In essence, the party should not be obliged to undertake expenses which have their origin in the inexistence of specialized organs, within the Public Health Care, that can solve her illnesses or at least mitigate them. And that has determined the need to turn to Private Health, and curiously on the basis of the specialists of the Public Health Care itself. Therefore, we do not find ourselves before a misuse or abuse by the party of the capacity to turn to Private Centers.” Page 8.

“The mentioned article 5.3 of the RD has then to be interpreted systematically in relation with the protection of citizens' health obligation. For the expenses' reimbursement to be appropriate, it isn't necessary for the life of the patient to be in real and imminent risk, it is enough with a rational probability of delay in receiving assistance that could lead to serious health harm in the shape of sequels or even the enlargement of serious sufferings, as that is the extent to which goods are protected by article 15 of the Constitution.” Page 7.