We agree with Damm and K€onig who claim that the legislator has deliberately
opted for a pragmatic approach, limiting legal regulation to genetic diagnostic,
without, however, restricting debates about its potential extension towards a more
generalized approach or towards all forms of predictive health information.^47 Many
find this opinion acceptable, even from the standpoint of personalized medicine.^48
Taking over responsibility for prevention after prediction is another issue that
should be further investigated. Let us assume that individualized medicine will be
able to offer each individual, in foreseeable time, a personalized specification of
risk. A logical inference stemming from this expectation is that the same individual
will take responsibility for his health and take adequate measures.^49 Prevention
should therefore be subject to both empirical and normative investigations. Empir-
ical findings would enable elaboration of preventive measures adapted to specific
target groups.^50 At the normative level, differentiation between prevention of
conduct and prevention of relations should accordingly result in distinct legal
consequences. Any intervention following identification of risk should take into
account risk factors and mechanisms of their operation that explain the outbreak of
illness, as well as the extent to which they can be influenced. If risk factors in
connection with environment, social, or structural mechanisms, which are barely
subject to individual control, largely account for the incidence of illness or are more
prominent in comparison with individual genetic predispositions, it is more appro-
priate to put an accent on the prevention of relations than conduct.^51
The relation between prevention and responsibility in personalized medicine has
to take into account the difference between special prevention focused on patients
and general prevention directed at society and the health system. The resulting
problem is the tendency of heavier burdening of potential and actual risk carriers
due to greater accountability. This could, however, lead to the erosion of the
obligation of solidarity.
Personalized medicine will certainly open up an entire new niche for private
health insurers. The principle that the amount of premium is adequate to risk will
reveal its full potential. Competition will be strengthened, so will the importance of
premiums and benefits, i.e., competitiveness and attractiveness of particular
insurers. Three possible models proposed in literature are as follows:
- the amount of premium is differentiated in accordance with the risk (the greater
the risk, the higher the amount of premium); - where equal insurance premiums exist, the risk and extent of insurance may be
adjusted, by excluding or including certain benefits;
(^47) Damm and K€onig ( 2008 ), pp. 62 and 68; Wiese ( 2005 ), p. 2073; Wiese ( 2009 ), p. 2198.
(^48) Deutscher Bundestag ( 2009 ), pp. 18, 128, 154.
(^49) Deutscher Bundestag ( 2009 ), p. 12 and 151.
(^50) Deutscher Bundestag ( 2009 ), p. 151.
(^51) Deutscher Bundestag ( 2009 ), p. 152.
Challenges of Personalized Medicine: Socio-Legal Disputes and Possible Solutions 41