On July 16, 2019, the Munich Higher Regional Court issued a Judgment in connection with an app of a Swiss provider felled. Apparently, a provider had offered services of a subsidiary, a health insurer, via an Internet presence with a .de domain in Germany, including a “digital doctor’s visit” to Swiss doctors. In the view of the Munich Higher Regional Court, this advertising violates the German Healthcare Advertising Act (HWG) and is inadmissible.
The following Guiding principles:
1) Section 9 sentence 1 HWG is not to be interpreted restrictively to the effect that the prohibition of advertising for remote treatment would require the advertised treatment to be inadmissible. Rather, Section 9 HWG has its own regulatory content in that it does not prohibit distance treatment per se, but rather the advertising thereof.
2. even with the new regulation of § 9 HWG (valid from 19.12.2019), the legislator has adhered to the fundamental assessment that a Remote treatment advertising In the interest of avoiding the risks to public health in general associated with such advertising. Prohibited (cf. Section 9 sentence 1 HWG). Only under the conditions specified in Section 9 Sentence 2 HWG is the advertising of remote treatments now permitted by law.
3. an advertisement for remote medical treatment in the form of a digital doctor’s visit, whereby patients living in Germany are offered the possibility of obtaining diagnoses, therapy recommendations and sick notes for unspecified treatment cases and situations from doctors abroad via their smartphones by means of an app., is not covered by the exceptional circumstance of Section 9 sentence 2 HWG, according to which it is assumed that medical contact with the person to be treated is not necessary in the advertised cases according to generally accepted standards.
German law was applicable in accordance with Art. 6 (1) of the Rome II Regulation (principle of effect).