Medical Expert Assessment in Swiss Social Insurance Disputes
Medical expert assessment is at the heart of most disputes in Swiss social insurance. Whether for DI (disability insurance), SUVA, loss of earnings insurance or pension funds, work capacity and the degree of invalidity are assessed on the basis of medical expert assessments. The quality of these assessments and their probative value are decisive for the outcome of proceedings. PBM Avocats accompanies insured persons in Geneva and Lausanne in contesting unfavourable assessments.
The Different Types of Medical Expert Assessments
| Type of assessment | Commissioning party | Characteristics |
|---|---|---|
| RMS assessment | DI office (internal) | File review or examination; probative value often contested |
| MEDAS / CEMEDEX assessment | DI office via SuisseMED@P | Multidisciplinary assessment; high probative value under FSC |
| SUVA assessment | SUVA (district physician) | Evaluation of accident sequelae |
| Private counter-assessment | Insured person (physician of their choice) | Probative value recognised if well reasoned |
| Judicial expert assessment | Cantonal court | Ordered if assessments are contradictory; high authority |
Criteria for Probative Value According to the Federal Supreme Court
The Federal Supreme Court has developed in abundant case law precise criteria for evaluating the probative value of a medical expert assessment (BGE 134 V 231, 125 V 352 in particular). An assessment has full probative value when it:
- Is based on a complete medical file and all relevant documents
- Includes a detailed anamnesis (history of the condition, treatments, evolution)
- Takes account of the subjective complaints of the insured, even those that cannot all be objectified
- Is based on a thorough clinical examination (not merely a file review)
- Contains a precise diagnosis according to international classifications (ICD-10, DSM-5)
- Includes a reasoned assessment of work capacity and its functional limitations
- Is written by competent specialists in the relevant fields
The SuisseMED@P System: Random Attribution of Expert Assessments
Since 2012, multidisciplinary assessments commissioned by DI offices are allocated by random draw via the SuisseMED@P system. This mechanism aims to guarantee the independence of experts and to avoid systematic mandates to certain centres. The insured person has the right to:
- Be informed of the questions submitted to the expert before the assessment
- Formulate additional questions to be submitted to the expert
- Request the recusal of an expert for legitimate reasons (impartiality, conflict of interest)
- Obtain a copy of the assessment report
Contesting a Medical Expert Assessment: Legal Strategies
When a medical expert assessment is unfavourable to the insured, several strategies may be deployed:
- Formal critique: verify whether the assessment meets all the jurisprudential criteria for probative value
- Substantive critique: produce medical reports from treating physicians that contradict the expert's conclusions
- Private counter-assessment: commission an assessment from an independent specialist physician of one's choice
- Application for judicial expert assessment: request that the court order a new independent assessment
- Recourse to case law: invoke Federal Supreme Court rulings on similar situations
Psychiatric Expert Assessments: Particular Issues
Psychiatric expert assessments are particularly complex and often decisive in invalidity cases related to mental disorders. The Federal Supreme Court has developed specific indicators to assess the disabling nature of mental disorders (BGE 141 V 281). These indicators relate to:
- The consistency between the announced functional limitations and the insured person's actual activities
- The expectability of a volitional effort to overcome the limitations
- The treatment followed and its effectiveness
- The social context and personal resources of the insured
These elements are often the subject of debate between experts and lawyers in DI proceedings involving psychiatric disorders (depression, burnout, personality disorder, etc.).
What is the Regional Medical Service (RMS) of the DI?
The RMS is the internal medical body of cantonal DI offices. It evaluates the medical reports produced by treating physicians and experts, and formulates medical opinions on work capacity and invalidity. The RMS may also commission external expert assessments via the random attribution system SuisseMED@P.
Can a DI expert assessment be contested?
Yes. The probative value of an expert assessment may be contested if it does not satisfy the conditions established by the Federal Supreme Court's case law: complete file, anamnesis, thorough clinical examination, consideration of complaints, reasoned and convincing conclusion. A diverging medical opinion or a private counter-assessment may be produced to contest the conclusions.
Can I refuse to submit to a DI medical expert assessment?
Refusal to cooperate with an expert assessment may have adverse consequences for your case. The insured person has the right, however, to know the questions submitted to the expert and to put their own additional questions. They may also request the recusal of an expert if there is doubt about their impartiality.
How does a private counter-assessment work?
A private counter-assessment is carried out by a physician of your choice, a specialist in the relevant field. It analyses the same questions as the official assessment and may reach different conclusions. Federal case law recognises its probative value if it is well reasoned, even though official assessments in principle carry more weight.
Which physicians may carry out expert assessments for social insurance?
For the DI, multidisciplinary assessments are commissioned via SuisseMED@P to accredited assessment centres (CEMEDEX, MEDAS, etc.). For SUVA, the insurer commissions its own physicians or external experts. Treating physicians may also write medical reports, but their probative value is often contested by insurers due to the relationship of trust with the patient.