In its judgment, the Federal Supreme Court (the Court) dismissed a physician’s appeal against a judgment of the Administrative Court of the Canton of Schwyz (Verwaltungsgericht des Kantons Schwyz), acting as cantonal arbitration tribunal, of 28 March 2024. At issue was the review of the economic efficiency of the physician’s practice in 2018.

Several health insurers had claimed repayment from a specialist in paediatrics and adolescent medicine for uneconomical treatment under art. 59 para. 1 let. b of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). The Administrative Court partially upheld the claim and ordered a repayment of CHF 105’479.00. The physician argued that no individual case review had taken place and that her practice-specific features had been disregarded.

The Court confirmed the two-step review. The regression analysis agreed between the tariff partners served only as a screening tool. Whether a provider actually practised uneconomically had to be established in a subsequent individual case review. This review determined the definitive tolerance margin of 20 to 30 points and any practice-specific features. It had to be completed before the claim was filed and could not be shifted into the arbitration proceedings. The insurers had done so in the present case.

The review was participatory. The physician had to substantiate practice-specific features with the data available to her, such as records of diagnoses. She did not, however, have to quantify their cost effect. She had failed to show why treating a small number of adult patients increased her costs. The Court therefore upheld the tolerance margin of 20 points.

Regarding the calculation, the Court held that the Administrative Court had applied an incorrect formula. Under BGE 151 V 284, the repayment ratio was based on the total cost index, comprising direct and induced costs. Only direct costs were recoverable. The correct method would have resulted in a repayment of CHF 189’289.00. As the Court was bound by the parties’ requests, the amount of CHF 105’479.00 remained unchanged. 

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