BGH on advertising for “digital doctor visits” abroad

Karlsruhe (dpa) – The Federal Court of Justice (BGH) clarifies whether advertising for “digital doctor visits” via app is permissible for doctors abroad.

At the hearing on Thursday it became clear that the Karlsruhe judges see room for new technical possibilities. However, there are many questions to be clarified, the presiding judge of the First Civil Senate, Thomas Koch, made clear. For example: whether a ban on such advertising would apply to all foreign countries or whether differences would be made between EU countries and Africa, for example. The court will not announce a decision until later. (Ref. I ZR 146 / 20)

Specifically, it is about a private health insurance company based in Munich, which offers remote treatment on the Internet had advertised with doctors in Switzerland via app. The competition center sees this as a violation of the drug advertising law and sued for an omission. The lawyer for the non-profit association said before the BGH that a doctor had to recognize the patient’s breathing, be able to collect data on the circulatory system, feel it and listen to it. Follow-up treatments are conceivable via video if the doctor already knows the patient and the disease. It’s not about the means of communication, but about the question of whether doctors can diagnose diseases at all from a distance.

Is not about appendicitis

The other side argued that the doctors had to decide on a case-by-case basis whether they can determine a finding in this way and recommend therapy. “It’s about trivialities and not the question of whether you have appendicitis,” said lawyer Norbert Tretter. The corona pandemic in particular has shown that digital treatment options are important and possible.

In the two lower instances in Munich, the insurance was inferior and has now been revised. The Higher Regional Court, for example, had argued that the gold standard of medical treatment was personal contact. “We think that may not be right,” said Judge Koch. In several places in the past, the legislature created ways to more digitization in the health care system. The possibilities of so-called telemedicine are based on the fact that treatment methods can change.

The affected paragraph 9 in the drug advertising law, for example, was supplemented by a second sentence in the course of the proceedings, the “remote treatments that use Communication media take place »taken into account. However, until now there have only been standards or guidelines for remote treatment in selected areas such as emergency medicine, Koch made clear – but not for all so-called primary doctors such as general practitioners.

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