Wettbewerbszentrale prevails with KLAKA against misleading advertising for digital doctor's visit and sick note
Munich, 10.07.2020: In commercial transactions in the Federal Republic of Germany, remote medical treatment in the form of a digital doctor's visit may only be advertised in exceptional cases. In particular, advertising offering patients living in Germany initial medical consultations in the field of general diagnoses, therapy recommendations and sick notes basically via their smartphone is not permitted. This was decided by the Munich Higher Regional Court in a landmark ruling announced yesterday (Case No.: 6 U 5180/19).
The action was brought by the Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V. against an advertisement by the insurance company ottonova Holding AG. The specific advertisement challenged stated that the entire initial medical contact could be made by way of remote treatment (for reasons of space, the advertisement is not printed). The Munich Regional Court had found this to be prohibited advertising. The Higher Regional Court has now rejected the appeal against the Regional Court decision (decision of 16.07.2019, Case No.: 33 O 4026/18). The grounds for the judgement are not yet available and the decision is not yet final.
ottonova's advertising stated, "Just stay in bed when you go to the doctor.", and was used on its website and in announcements to its customers promoting the "digital doctor's visit" via an app. The advertisement referred not only to the diagnosis and therapy recommendation but also the sick note via app. To quote, "Why you will love the digital doctor's visit. For the first time in Germany, receive diagnoses, therapy recommendations and your sick note via an app." According to the company, the so-called "eedoctors" who were to carry out the advertised remote treatment were experienced doctors in Switzerland.
However, such forms of remote treatment and diagnosis are subject to special legal regulations. Sec. 9 of the German Drug Advertising Act (Heilmittelwerbegesetz) basically prohibits the advertising of remote treatment. However, this Act had only been reformed in December 2019. After the relaxation of the prohibition of remote treatment in the professional code of conduct, doctors are allowed to provide remote treatment in exceptional cases under certain conditions according to the Model Professional Code of Conduct. They may "use communication media as an aid for this purpose". The advertising ban does not apply to the advertising of remote treatment using communication media "if, according to generally recognised professional standards, personal medical contact with the person to be treated is not necessary". However, as the Munich appeal court made clear, the challenged, very broad advertising for remote treatment by ottonova went beyond this exception. The Wettbewerbszentrale had specifically taken action against the advertising in order to determine whether purely digital primary care models, i.e. those without any personal contact between the patient and the doctor, meet these requirements.
The Wettbewerbszentrale was represented in the proceedings by KLAKA Rechtsanwälte partner Dr. Constantin Kurtz. Dr. Kurtz has represented the Wettbewerbszentrale in competition law proceedings in Germany for many years. ottonova was represented by Counsel Dr. Reinhard Dallmayr of BLD Bach Langheid Dallmayr.
The Wettbewerbszentrale is the largest and most influential self-regulatory institution operating nationwide and internationally to enforce the law against unfair competition. The basis of its activities is the power of associations to take legal action pursuant to Sec. 8(3) No. 2 Act against Unfair Competition and Sec. 33(2) Act against Restraints of Competition. Its mission is to contribute to the promotion of fair business practices and fair economic competition through legal research, legal advice, information and law enforcement.
Lawyers for the Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V.
KLAKA Rechtsanwälte Munich
Dr. Constantin Kurtz, LL.M. (Illinois), lawyer, partner
Lawyers for ottonova
BLD Bach Langheid Dallmayr, Munich
Dr. Reinhard Dallmayr, lawyer, counsel
Munich Higher Regional Court
Presiding Judge Retzer
Higher Regional Court Judge Neumann
Higher Regional Court Judge Dr. Ruhwinkel (Judge-Rapporteur)