In its decision 9C_121/2024 of 23 June 2025, the Federal Supreme Court partially upheld the appeal of a living kidney donor concerning the compensation of long-term loss of earnings resulting from donation-related complications. The question in dispute was whether the compulsory health insurance of the organ recipient had to cover the donor’s earnings loss under the Federal Act on Health Insurance (Bundesgesetz über die Krankenversicherung, KVG) or the Federal Act on the Transplantation of Organs, Tissues and Cells (Transplantation Act).

The Administrative Court of the Canton of Thurgau had upheld the administrative decision of the Sumiswalder Krankenkasse, which had denied compensation for the period between 2015 and the donor’s retirement age. The cantonal court determined that the provision in the Ordinance on Healthcare Benefits (Krankenpflege-Leistungsverordnung, KLV), as in force at the time of the transplant in 2006, only allowed for temporary compensation and that no obligation to cover a permanent loss of earnings existed.

The court confirmed this interpretation insofar as it concerned the claim under the KVG. It held that the compulsory health insurance would only provide benefits to insured persons and that the donor, not being insured with the Sumiswalder Krankenkasse, could not assert a direct entitlement under the KVG. It also rejected the argument that earlier compensations by previous insurers were binding on the current insurer.

However, with regard to Art. 14 para. 2 let. b of the Transplantation Act, the Federal Supreme Court placed decisive emphasis on the nature of the claim. It clarified that the donor’s right to compensation under this provision did not constitute a benefit within the KVG system and was not a social insurance claim. At the same time, it explicitly rejected a characterisation as a private-law claim. Instead, the Court classified the entitlement as a claim under federal public law, rooted specifically in federal administrative (health) law. This qualification was pivotal because it excluded the jurisdiction of the Cantonal Social Insurance Court and required referral of the case to the Federal Administrative Court for examination on the merits.

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