BGH ruling restricts advertising for telemedicine

The Federal Court of Justice has ruled that telemedicine providers may only advertise remote treatments to a limited extent. Before doing so, doctors must examine each individual case in "physical presence".

The private health insurance company Ottonova promised to deliver "for the first time in Germany diagnoses, therapy recommendation and sick note via app", against this statement sued the Wettbewerbszentrale in Germany. Now the Federal Court of Justice (BGH) has ruled in favor of the plaintiff, Ottonova must correct its statement. This is about the advertising for the offers. According to the BGH, an assessment of each case is always necessary, which requires "the simultaneous physical presence of doctor and patient" and is "not possible in the context of a video consultation". All telemedicine offerings in Germany are affected by this decision.

"The BGH's narrow reading is difficult to reconcile with the political goal of further strengthening telemedicine and the digitalization of healthcare," judged medical law attorney Roland Wiring of the CMS law firm on LinkedIn. Now it is up to the politicians to set the course for a successful digitalization of the healthcare industry, for telemedicine the "corset is unfortunately very tight".

The decision does not completely put the brakes on advertising telemedicine offerings: The BGH argues that doctors are obliged to assess by their "own perception" on site whether treatments and diagnoses can also be carried out digitally in the future. This applies if, according to "generally accepted professional standards, personal medical contact with the person to be treated" is not necessary. These standards are regulated in medical treatment contracts, which can "develop over time," for example, "from the guidelines of medical societies or the guidelines of the Federal Joint Committee," the BGH said.