Case 6501/2007

In 2002, Jose Maria was diagnosed with cancerous enlargements and was admitted to the Virgen de las Nievas Hospital, where he was treated with four cycles of chemotherapy and radiotherapy. One year later, he needed a surgery that public health services were unable to provide. As such, he went to the Teknon Clinic of Barcelona and was admitted. He bore the expenses for the services he received there.

He submitted a request for reimbursement for all health care received outside the national health system to the Health Service of Andalusia (SAS). Hi request was denied. After his death in 2004, Maria’s heir presented a claim to the Social Court of Grenada, which awarded him the money.  SAS appealed to the Social Chamber of the Superior Court of Justice of Andalusia, and the award was revoked, in a decision which stated that the lack of vital urgency and authorization of SAS made Maria unable to recoup the cost from SAS.

On appeal, Maria’s heir argued that Maria’s case was of “vital emergency,” and, as such, article 5.3 of the Decree 63/95 of January 20, 1995 (which states that administrative authorization from the public health services was not required in cases of vital emergency) allowed recovery.

The court held that Maria’s situation was not a “vital emergency” and thus denied his petition for reimbursement. The court reasoned that no vital emergency existed because it was not necessary to preserve life or retain actual healing. Even though an arguably analogous previous case had ruled that such a situation was of vital urgency, the court differentiated the situations by stating that, in the case of Mr. Maria, it was unclear whether public health services had hospitals where the special treatment was available (as opposed to the previous case, where they clearly did not). Additionally, the new technique used was not approved by the State’s Administration, so it did not fall within the umbrella of required reimbursements.

“This cannot be considered as a case of vital urgency because we are not before a case where the necessity of urgent, immediate and vital health assistance existed. The time between leaving the public hospital and going to the private clinic (two days), and the medical intervention therein (eight days). Also the doctrine of this Chamber in decisions dated October 7 1996 (Appeal 109/06), October 25 1999 (Appeal 760/99), understands that the “necessity of urgent assistance” may be defined not by the mere urgency of the intervention but by the fact that such urgency determines an impossibility to access the public health services. The problem herein is not about the existence of such vital urgency. It is about if the required assistance was proper or not, since the patient was being treated by a public health facility which did not have the techniques used by facilities in private health. The issue then is to determine if the public health system was obliged to provide medical assistance using the aforementioned technique. The answer must be negative since it cannot be stated that such new technique was approved by the State’s Administration, as required by article 109 of the Law 14/1986 and the First Additional Clause of the Royal Decree 63/95. Neither has the scientific expertise of such technique, its safety nor its efficacy regarding prevention, treatment and healing of the disease, as is demanded by article 2.3 of the Royal Decree 63/95 been asserted.” Pages 6-7.