A doctor who advertises with "specialist consultations via telephone and video" and thus with remote treatments, as well as non-existent specialist designations, is behaving in an anti-competitive manner. This was the finding of the Koblenz Regional Court - rightly so?
An association for the promotion of commercial interests took a doctor to court for his email advertising. The doctor advertised "specialist consultations via telephone and video", described the treatment process and advertised "diagnostics for all organ systems".
The doctor also advertised himself as a specialist in "acupuncture, hypnosis, sexual medicine, psychoneuroimmunology, energy and space medicine".
Misleading through Non-existent specialist designations
The LG Koblenz (Verdict from the 20.07.2021 - Ref. 1 HK O 29/21) correctly states that specialist titles may only be used if this results from the further training regulations for doctors. Such a specialist dentist title is issued by the relevant district medical association and may not be used without recognition.
The term "Facharzt" therefore stands for a specialization that is proven by the acquisition of corresponding knowledge and thus entitles the holder to use the title of specialist.
It is therefore inadmissible to advertise with specialist doctor designations that do not exist at all. In the absence of further specification and clarification, consumers assume that a doctor who describes himself as a "specialist" has completed appropriate further training.
Violation of the ban on advertising remote treatments
Remote treatment is when a diagnosis is made or a treatment proposal is made solely on the basis of information provided in writing, by telephone, via other media or by third parties at a distance, without having seen or examined the patient in person.
Advertising for remote treatments is generally prohibited under the HWG. By way of exception, advertising for remote treatments is permitted if, according to generally recognized professional standards, personal medical contact with the person to be treated is not necessary.
The benchmark for the "generally recognized professional standards" is derived from the Model Professional Code for Physicians, which states:
One fromfinal advice or treatment about communicationcation media is permitted in individual cases if this is medically is justifiable and the necessary medical care is exercised, in particularin particular by the waye of the diagnosis, consultationtreatment and documentation is ensured and the patient is also informed about the special features of the the exclusive consultation and treatment of comcommunication media.
According to Koblenz Regional Court, there was a lack of justification as to why, according to generally recognized professional standards for "diagnostics for all organ systems", personal medical contact with the person to be treated is not necessary. Therefore - according to the court - there was a breach of the law on advertising remedies.
Conclusion
Doctors may only advertise with specialist doctor designations for those areas that are designated as "areas" in the further training regulations for doctors. If the doctor has acquired in-depth knowledge in an area that is not designated as an area in the further training regulations for doctors and wishes to advertise this, a designation must be chosen that does not suggest a corresponding specialist title.
With regard to advertising for remote treatments, the decision of the Koblenz Regional Court is not convincing. The liberalization pursued by the legislator for the advertising of remote treatments does not require the doctor to justify in the advertising why no personal medical contact is necessary for the advertised treatment. The doctor "only" has to ensure that their advertising only refers to treatments for which remote treatment is generally possible in accordance with "generally recognized professional standards". The "treatment model" advertised by the doctor must give him the opportunity to decide on a case-by-case basis whether remote treatments also meet these standards in the specific individual case, i.e. in the specific doctor-patient relationship.
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