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. Doctors must first examine each individual case in "physical presence".

The private health insurance company Ottonova promised to deliver "diagnoses, therapy recommendations and sick notes via app for the first time in Germany", and the Wettbewerbszentrale (competition watchdog) in Germany took legal action against this statement. The Federal Court of Justice (BGH) has now ruled in favor of the plaintiff and Ottonova must correct its statement. This concerns 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 services in Germany are affected by this decision.

"The narrow interpretation of the Federal Court of Justice is difficult to reconcile with the political goal of further strengthening telemedicine and the digitalization of the healthcare system," says medical law lawyer Roland Wiring of the law firm CMS on LinkedIn. It is now up to politicians to set the course for the successful digitalization of the healthcare sector, but unfortunately the "corset is very tight" for telemedicine.

The decision does not completely put the brakes on advertising for telemedicine services: The BGH argues that doctors are obliged to assess through their "own perception" on site whether treatments and diagnoses can also be carried out digitally in the future. This applies if, according to "generally recognized 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", according to the BGH.