Social Security Law

The right to social security derives its source from Article 60 of the Constitution. The answer to the question of what is Social Security Law is the sub-branch of law that regulates the rights and obligations of the state and the individual in terms of various social risks related to individuals.

One of the biggest problems we face in our country in relation to Social Security Law is the non-payment of immunotherapy drugs and smart drugs prescribed by specialist oncologists for the treatment of cancer patients by the Social Insurance Institution and the lawsuits filed in relation to this.

According to the Health Implementation Communiqué, the detailed legislation on this subject, immunotherapy, a new treatment method in the fight against cancer, has yielded successful results all over the world in recent years. The coverage of immunotherapy drugs and smart drugs by the Institution has become subject to many conditions.

In our country, drugs such as Opdivo, Keytruda, Tecentriq, Giotrif, etc., which are used in immunotherapy and other alternative treatment methods, are frequently prescribed by specialist oncologists to cancer patients who cannot get positive results with chemotherapy and radiotherapy treatments (as long as the patient’s health condition is favorable) and many patients have to resort to legal remedies because they cannot afford the costs of these drugs, which cost 3-4 thousand dollars per month.

If an immunotherapy drug or smart drug is prescribed to a patient by a specialist oncologist, an off-label drug application must be filed with the Turkish Medicines and Medical Devices Agency if the main purpose of the drug is not cancer or if it is not a drug used exclusively for cancer treatment. This application is not a prerequisite for filing a lawsuit. It is a factor that increases the possibility that the SSI will take an interim injunction in a possible lawsuit and cover the costs of the medication during the trial.

In accordance with the Social Security Law, following the indication application procedure, an application must be made to the SSI with a petition for the payment of drug costs. Within the scope of the Social Security Law, this application can be made by the patient or his/her lawyer.

It is important to prepare the application petition in detail and carefully. In particular, the application petition should include reports and documents regarding the patient’s condition and the diagnosis of the disease, the disease for which the immunotherapy drug or smart drug deemed appropriate by the specialist oncologist is required, the reason why the patient has to use the drugs in question, the certified copy of the drug usage report, the hospitals where the examinations and examinations were performed, the reports and documents issued by the doctors, if any, that the drugs in question will have a positive effect on the treatment of the patient, scientific articles, expert opinions, etc. regarding the applications and results of the drug in question in Turkey or abroad. The application is evaluated by the Health Social Security Center of the Social Security Institution to which the hospital where the treatment will be provided is affiliated.

This application may also vary depending on the location of the Institution to which the application is made. In most cases, the application is rejected by the Institution with a response letter within a few weeks, and the reason for the rejection is the provisions in the Health Implementation Communiqué 4.1.14.C Drugs with Special Regulations (Cancer Drugs) section.

Thereupon, the patient himself or through his proxy must file a lawsuit in the Labor Courts, which is the competent court in accordance with the Labor Courts Law No. 7036, with the request for the cancellation of the institution’s transaction and the interim injunction to cover the cost of the medication determined during the trial period by the Institution. (If there is no Labor Court in the jurisdiction, the competent court will be the Civil Court of First Instance) (For individuals working as public personnel, the competent court is the Administrative Court)

The petition should include the SSI Presidency as the defendant, all the processes should be explained in detail again, and the petition should preferably include the words “requesting an injunction” at the top right of the petition. Specifying the monthly cost of medication, even if it is approximate, stating that the disease is still present and spreading based on the pet/ct report stating that equivalent or classical treatments have been applied but no positive results have been obtained, stating that different treatments are needed for this reason, stating that an application has been duly made to the SSI regarding the subject and that this application has been rejected by the Institution, specifying the dates and details, and mentioning the principle of social state in Article 5 of the Constitution. Article 5 of the Constitution, the Right to Life under Article 17 and the Right to Health under Article 56 of the Constitution.

In the part of the request, first of all, the request for an interim injunction should be stated in order to ensure that the medication in question can be covered by the SSI without interruption during the trial. The information of the institutional decision that prevents you from obtaining Opdivo, Keytruda or other prescribed medication free of charge should be written and the request for the cancellation of this decision and, if applicable, the request for the transfer of attorney’s fees and judicial expenses to the other party should be included.

Within the process, it is also important to attach the diagnosis and reports regarding the disease, the prescription written by the doctor to the patient, the documents regarding the off-label drug application made to the Turkish Medical Devices and Pharmaceuticals Agency, if any, the invoices paid for the drug up to that point, the application petition to the SSI and the Institution’s response letter, the physician’s opinion letter written that the drug in question will be good for the patient, if available, and the SSI service documents from the beginning of the patient’s working life in order to facilitate the determination of the court in charge. It is also critical to take into account the five-year statute of limitations starting from the invoice amount paid for the first medication before filing a lawsuit in order to avoid loss of rights.

Courts, in accordance with Article 389 of the Code of Civil Procedure, usually grant an interim injunction immediately and for the duration of the proceedings. This decision is valid until the Court’s final decision at the end of the case, unless the SSI appeals to the Court of Appeal and obtains another decision to lift it.

Following the issuance of a preliminary injunction, it is necessary to apply to the institution again with a petition for the implementation of the decision in question. Within the scope of Social Security Law, there are different practices in each province. In particular, the Institution requests the submission of the prescriptions and empty medicine boxes paid by the patient for the medicine. However, if the relevant SSI allows the drug to be billed directly to the SSI, the reimbursement procedure can be facilitated by submitting a petition.

After submitting the documents, the Agency pays the amount specified in the invoice to the bank account specified in the application petition. Again, although it varies according to the provinces, it usually does so within a few weeks.

The issuance of a preliminary injunction is not a decision that terminates the proceedings; the proceedings continue after this decision. An interim injunction is a decision that can be appealed during the proceedings. Each time, the defendant SSI appeals this decision to the Supreme Court. However, this request of the Institution is usually rejected and the costs of medicines for cancer continue to be paid by the Institution as an injunction throughout the proceedings.

In this case, there is more than one possibility.

If none of the heirs have rejected the inheritance and are pursuing the case, the case is ongoing. In the course of the lawsuit, a decision is made in line with the evidence at hand or the evidence to be collected later. For the party who does not follow the case, a decision should be made that there is no need for a decision.

Within the scope of social security law, if the heirs have rejected the inheritance, the lawsuit will be dismissed as it will not be subject to the lawsuit. As a precautionary measure, the drug costs paid by the Institution and the costs related to the lawsuit are left on the plaintiff.