1. Facts of the case
An air rescue operator performed two medically necessary air rescue transports after a traffic accident. He charged the injured person (patient) for the transport costs after deducting a payment received from the responsible social insurance agency. The patient's opponent was solely responsible for the traffic accident.
Since January 2020, there has been an agreement on direct settlement (direct settlement agreement) between the air rescue operator, other air rescue operators and the Main Association of Social Insurance Institutions. Among other aspects, this agreement regulates the assumption of the reimbursement of costs by the social insurance agency and the invoicing of the transported patient.
The patient involved in the accident sued the motor vehicle liability insurer of the other party involved in the accident for damages. The defendant, the other party's motor vehicle liability insurer, objected that any claim for damages had been transferred to the social insurance agency, which had borne part of the costs. In addition, the air rescue operator had waived the right to assert further claims arising from the air rescue transport in the direct settlement agreement.
2. Legal opinion of the lower courts
The court of first instance upheld the claim. The amount not covered by the social insurance agency was to be covered by the transported patient. Patient transport costs are medical costs in accordance with § 1325 ABGB. The court of appeal confirmed this decision. The direct settlement agreement regulates a reimbursement of costs and does not provide for an obligation of the social insurance agency to provide contribution/benefit in any kind. The transported patient remains the client of the transport and the claim for damages is only transferred to the social insurance agency in the amount of the cost reimbursement obligation according to § 332 ASVG. The remaining damages could be claimed by the patient transported in the accident from the injuring party (= other party involved in the accident). The performance of the air rescue operator should not benefit the injuring party.
3. Legal position of the Supreme Court (2 Ob 145/22w)
The Supreme Court states that patient transport costs are part of the medical assistance to be provided by the social insurance agency. They are annex service to the medical treatment. Patient transport costs are medical costs according to § 1325 ABGB. The person who has borne them is entitled to compensation.
For the legal assignment according to § 332 para 1 ASVG it is decisive whether the performed air rescue is a benefit in kind granted by the social insurance agency or a mere reimbursement of costs. According to § 332 para 1 ASVG, the claim of the injured person (= patient) against the injuring party is transferred to the social insurance agency if the latter has to provide payments to the injured person (= legal assignment).
In the concrete case, the social insurance agency did not provide benefits in any kind, but merely reimbursed the costs. Therefore, the remaining amount not covered by the social insurance agency remains with the injured, transported patient (claim for damages). The patient can sue for this directly from the injuring party. The claim for damages is only transferred to the social insurance agency to the extent of the reimbursement of costs by the social insurance agency.
Moreover, according to the Supreme Court, no waiver by the air ambulance operator of the assertion of air rescue costs can be derived from the direct settlement agreement if a claim by the transported patient exists against a private insurer or a third party.
The provision in the direct settlement agreement, which entitles the air rescue operator to claim the remaining amount (= invoice amount minus the partial amount paid by the social insurance agency) from the private insurer (and not from the patient), also does not establish a contract to the disadvantage of third parties (namely here: motor vehicle liability insurer of the other party involved in the accident). The defendant motor vehicle liability insurer is not burdened with a payment that it would not have to make in any case according to the principles of compensation law.