May a doctor call himself sick

Take sick leave after cosmetic surgery?

Physical optimization has to be paid for out of pocket. But who pays when complications arise, when pain or incapacity for work occurs?

The market for surgical interventions that are not medically indicated, so-called cosmetic operations, is growing inexorably. The Association of German Aesthetic Plastic Surgeons (VDÄPC) and the German Society for Aesthetic Plastic Surgery (DGÄPC) estimate their number at half a million, with double-digit annual growth rates. The number of unreported cases is likely to be high, since even doctors who are not allowed to use the title of specialist in plastic and aesthetic surgery feel capable of cosmetic surgery.

These operations do not always go smoothly. Plastic surgery also has its side effects, risks and complications. It is clear that the desire for physical optimization has to be paid for out of pocket, because deviating from the actual or supposed ideal of beauty does not constitute an illness within the meaning of health insurance law. But if something goes wrong, the call for the statutory health insurance company quickly becomes loud to pay for the costs of eliminating the consequences. But is this reputation also justified?

Personal negligence usually has no consequences, not premeditation

A general obligation to maintain health or a prohibition on self-harm is alien to the law of statutory health insurance. In principle, it is completely irrelevant for the health insurance company's obligation to provide benefits, how and by whom an illness was caused. Rather, it has to grant its sickness benefits in principle regardless of fault. Personal negligence therefore has no legal consequences.

This historically deeply rooted idea of ​​solidarity is restricted in Section 1 of the fifth book of the Social Security Code (SGB V). According to this, the insured are “jointly responsible” for their health. It goes on to say that they should "contribute to avoiding illness and disability or overcoming their consequences through a health-conscious lifestyle, through early participation in preventive health measures and through active participation in treatment and rehabilitation".

The tension between solidarity and personal responsibility addressed in this provision is only resolved in the further course of SGB V in rare cases to the detriment of the insured. It is not enough to eat the wrong diet or engage in a risky sport. Health insurance law only reacts if the insured person has contracted the disease intentionally or as a person involved in a crime - and in the case of cosmetic operations. According to Section 52 (2) of the Social Code Book V, the health insurance company has to give an insured person a reasonable share of the costs of an illness if this is the result of an aesthetic operation that is not medically indicated. In addition, she has to refuse sick pay in whole or in part for the duration of the treatment. Incidentally, the same applies to a tattoo or piercing.

First of all, it should be emphasized that Section 52 (2) SGB V does not lead to a loss of the entitlement to benefits in kind. If the heart suddenly stops during liposuction and a transfer to the intensive care unit of a hospital becomes necessary, the health insurance cannot refuse the inpatient service with reference to the medically unnecessary cosmetic surgery. The same applies to antibiotics in the event of infection of the surgical wound or after breast augmentation, if removal of the implant is necessary for medical reasons. The only option for the health insurance company is to give the insured person an “appropriate” share in the treatment costs - which it has to decide at its due discretion, taking into account all the circumstances of the individual case. For the contract doctor, the standard means that he must not refuse treatment and a complication-related incapacity to work with reference to the causal cosmetic operation.

Complication or regular side effect?

It is not that easy to answer the question of whether the medication required after the cosmetic surgery to combat pain may be prescribed at the expense of the health insurance company or whether the incapacity for work can be certified on an AU sample form for the health insurance company. The specialty is that the mentioned consequences are not complications of the operation, but their regular side effects. If they too fall within the scope of Section 52 (2) SGB V, only a cost sharing by the insured person would come into consideration, but not a refusal of benefits. There is no clear answer to be found in the law. After all, it could be argued that the Federal Social Court has consistently ruled that the claim-triggering concept of illness is defined as an irregular state of body or mind that necessitates medical treatment. In any case, postoperatively, there is an "irregular body condition" requiring medical treatment, so that one could well assume that the insured person has a basic claim to benefits.

On the other hand, it could be argued that postoperative medication and rest are still part of the operation as such and are therefore not the responsibility of the health insurance company. This is probably also how the Federal Joint Committee of the G-BA sees it, according to whose incapacity guideline there is no incapacity for work “in cosmetic and other operations without a background due to illness and without complications”. However, as far as can be seen, court decisions have not yet been made.

Regardless of this, the contract doctor is bound by the work incapacity guideline. So he may not find that he is unable to work after cosmetic surgery, provided that it is only a normal consequence of the operation. Only if there are complications does he have to certify the incapacity for work. The same will probably have to be assumed for pharmaceuticals, although the pharmaceutical guidelines of the G-BA do not contain an express exclusion of benefits for cosmetic surgery. Nevertheless, to be on the safe side, it is advisable to prescribe drugs against the regular consequences of surgery on a private prescription. If necessary, the patient should be referred to the attempt to have the costs reimbursed by his health insurance company.

All of this means that the contract doctor has a certain duty to investigate: He must check whether the complaints are a regular consequence of the cosmetic surgery or are a complication. Incorrect allocation can trigger claims for compensation from both the health insurance company (in the amount of the cost of the drug and, if applicable, in the amount of the sickness benefit paid) and the patient's employer (due to wrongly paid wages). Admittedly, no such cases have become known to date. With regard to sickness benefit and wage claims, this is primarily due to the fact that Section 106 (3a) of the Social Code Book V only allows for liability for damages in the event of grossly negligent or even deliberate incorrect determination. Such a failure will only rarely be able to be proven to the contract doctor. The restriction to gross negligence or willful misconduct does not apply to drug recourse. However, the compensation amounts that may be considered in this respect are likely to be very low, so that it is not worthwhile for the health insurance companies to carry out an extensive, comprehensive examination.

Lawyer and specialist lawyer for medical law
Dierks + Bohle Attorneys at Law, Berlin