Advertising of digital doctor visits inadmissible / Wettbewerbszentrale wins against health insurer ottonova also before the FCJ
This was confirmed by the Federal Court of Justice (BGH) in an appeal decision published today (case no.: I ZR 146/20). The action was brought by Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V. against the private health insurer ottonova Holding AG. The District Court of Munich I (case no.: 33 O 4026/18) and the Munich Higher Regional Court (case no.: 6 U 5180/19) had already ruled that very strict requirements apply to advertising for remote medical treatment, which ottonova had failed to meet.
With today's judgment, the Federal Court of Justice defines the framework for advertising of remote medical treatment. The decision of the District Court of Munich I of July 16, 2019 was the first relating to this type of telemedicine in Germany and expressly prohibited advertising for pure remote treatment as a primary physician model.
The insurer ottonova, which describes itself as "Germany's first digital private health insurance company," offered its German customers the services of receiving diagnoses, therapy recommendations and allegedly even sick notes from doctors in Switzerland via app. This was advertised on the website with the statement: “Receive diagnoses, therapy recommendations and sick notes via app for the first time in Germany”.
Wettbewerbszentrale was represented in the first and the second instances by Dr. Constantin Kurtz, partner in the law firm KLAKA Rechtsanwälte. The specialist for industrial property rights has been acting for on issues of unfair competition law for many years. Prof. Dr. Christian Rohnke, who regularly conducts FCJ proceedings for Wettbewerbszentrale, represented Wettbewerbszentrale before the Federal Court of Justice.
“Today's judgment of the Federal Court of Justice is of fundamental importance for the application of medical consultation by digital means. This was important with a view to the relaxation of the ban on remote treatment under professional law at the end of 2019 and particularly also because of the newly created possibilities during the Corona pandemic,” emphasizes Dr. Constantin Kurtz of KLAKA Rechtsanwälte. “The fundamental advertising ban on purely remote treatments set out in the Drug Advertising Law (Heilmittelwerbegesetz) has been confirmed by the FCJ, which has instructed experts to ensure general professional standards if such advertisements are to be made possible on a larger scale in the future. Advertising for digital primary care models will probably not be possible in the near future for the time being. The principle of treatment in personal contact is expressly laid down in the Medical Practitioners Act (Bundesärzteordnung, BÄO). It will be exciting to see how far the exceptions will go. In this respect, the written judgment with reasons and the future activities of experts remain to be seen.”
Representatives of Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V.
KLAKA Rechtsanwälte, München
Dr. Constantin Kurtz, LL.M. (Illinois), Attorney-at-Law, Partner
Rohnke Winter Rechtsanwälte, Karlsruhe
Prof. Dr. Christian Rohnke, Attorney-at-Law, Partner
Dr. Constantin Kurtz, Attorney-at-Law, Partner
KLAKA Rechtsanwälte München
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