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Verdict: Genetically high risk of breast cancer can be an illness


Federal Administrative Court: Preventive treatment conceivable
An increased risk of breast cancer due to family history and a gene mutation can be a disease. The aid may then also have to pay for the precautionary removal of the mammary glands, the Federal Administrative Court ruled on Thursday, September 28, 2017, in Leipzig (file number: 5 C 10.16). After that, it also depends on the possibilities of early detection and the existing chances of a cure.

An official from southern Hesse had sued. She has a BRCA2 gene mutation that is 80 percent likely to lead to breast cancer if she has a family history. Several female family members had already developed breast cancer here. Doctors classified the official as a "high-risk patient".

So she didn't want to wait until she got breast cancer. From the aid, which covers part of the health care for civil servants, she applied for preventive breast surgery with implant reconstruction. The state of Hesse, however, rejected this. The officer nevertheless had the operation carried out and sued for reimbursement.

Like the Administrative Court in Darmstadt, the VGH Kassel had upheld the lawsuit (judgment and JurAgentur announcement dated March 10, 2016, file number: 1 A 1261/15). The Hessian state aid regulations do not provide for the direct assumption of costs in such cases. However, it is derived from the duty of care of the employer, which is anchored in the Basic Law.

The Federal Administrative Court has now also followed this in principle. The judges judged that the high breast cancer risk from a BRCA2 gene mutation could be a disease under state aid law. Accordingly, the Federal Social Court (BSG) in Kassel had already opted for statutory health insurance.

However, a disease requiring treatment only exists if the likelihood of an illness is so high and the consequences are so severe that “the person concerned cannot be expected to take an overall assessment,
to let the events run its course and to limit itself to the use of early detection measures ”.

According to the Leipzig judgment, it is therefore not only the risk of illness that is important, but also the possibilities of early diagnosis and the chances of a cure that then exist. The VGH Kassel should therefore review both of these and reassess them in an "overall view" together with the risk of illness. mwo

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