Advertising by physicians and alternative practitioners – A legal guide

Prohibition on misleading promises of success in advertising by doctors and alternative practitioners for procedures and treatments under Section 3, sentence 2, No. 2(a) HWG

Misleading advertising under Section 3, sentence 2, no. 2(a) HWG occurs in particular when the false impression is created that the success of a medicinal product can be expected with certainty. It is not the promise of success itself that is prohibited, but creating the impression that success is certain. Whether such an impression is created depends on how the average advertising recipient understands the claim and does not require an explicit guarantee that success can always be expected (OLG Düsseldorf, 24 February 2022 – I-20 U 292/20 – Advertising by a naturopath using a patient’s medical history). It is sufficient to create the impression that success can usually be guaranteed.

Example of misleading advertising by a doctor

An orthodontist’s advertisement for braces using the words

“Perfect teeth” is misleading because it also promises an objective treatment outcome, namely straight teeth (OLG Frankfurt a. M., judgment of 27.2.2020 – 6 U 219/19 - Perfect teeth).

Example of misleading advertising by a naturopath

Advertising by a naturopath featuring a success story is misleading if it says: “Pain-free after many years of terrible suffering. [Name] is incredibly happy and grateful to be rid of his pain after treatment at the practice of naturopath [Name].” Even if the medical history were accurate, consumers would wrongly assume that the treatment could reliably help them with similar complaints (Higher Regional Court of Düsseldorf, 24.2.2022 – I-20 U 292/20 – Advertising by a naturopath featuring a medical history).

Advertising prohibitions for surgical plastic and cosmetic procedures under Section 11(1), No. 3 HWG using before-and-after images

Ban on comparative advertising for non-essential surgery (plastic surgery)

It is irrelevant whether a medical indication for the advertised procedure actually existed. Advertising for plastic surgery is prohibited as soon as the target audience could not tell that the surgical plastic procedure was not medically necessary.

Before-and-after images in advertising for treatments

Before-and-after images indicate a medically unnecessary procedure if it is not clear that the depicted patient’s medical symptoms have improved (OLG Düsseldorf, judgment of 27.04.2023 – 20 U 66/22 - Consumer understanding of advertising for liposuction of the abdomen and chest).

Ban on advertising non-essential surgery to children and young people

Advertising for cosmetic surgery procedures is also prohibited if it is aimed exclusively or predominantly at children and young people.

Ban on advertising certain other products, procedures and treatments by doctors to the general public under § 12(2) HWG

Under § 12 HWG, advertising medicinal products to people outside professional circles is also prohibited for other products, methods, treatments or objects relating to the diagnosis, elimination or alleviation of the diseases or ailments listed in Annex A to § 12 HWG. This does not apply to advertising for methods or treatments for pregnancy terminations performed by doctors, or to advertising in health spas, resorts and sanatoriums.

Advertising remote medical treatment by telephone, video chat or app under Section 9 HWG

§ 9 HWG prohibits advertising, not remote treatment

Under § 9 HWG, advertising for remote treatment is permitted only if, in accordance with generally recognised professional standards, personal contact between the doctor and patient is not required. § 9 HWG does not prohibit remote treatment itself, only advertising for it (Higher Regional Court of Munich, judgment of 9.7.2020 - 6 U 5180/19 - Advertising remote medical treatment via an app). It is therefore irrelevant whether the advertised treatment, for example by foreign doctors, is permissible under professional rules at all (Federal Court of Justice, judgment of 9.12.2021 - I ZR 146/20 - Advertising remote treatment).

Recognised professional standards

Whether personal contact with the patient is unnecessary and remote treatment is permitted is determined by “recognised professional standards”. What constitutes a recognised professional standard is determined by Section 630a(2) of the German Civil Code (BGB). A professional standard defines the conduct that can be expected of a conscientious and attentive doctor in a particular treatment situation, from the professional perspective of their speciality, at the time of treatment. It reflects the prevailing scientific knowledge and medical experience required to achieve the treatment objective and which have stood the test of practice (BGH, judgment of 9 December 2021 - I ZR 146/20 - Advertising for remote treatment). Recognised professional standards include the guidelines of medical associations and the directives of the Federal Joint Committee under Sections 92 and 136 of Book V of the German Social Code (SGB V). Professional standards can also develop independently of these (OLG München, judgment of 5 October 2021 - 29 U 7344/21 - Irish remote treatment for impotence). However, the professional rules in medical codes of conduct are not relevant, particularly because the Model Code of Professional Conduct for doctors practising in Germany has not been implemented consistently across the federal states (BGH, judgment of 9 December 2021 – I ZR 146/20 – Advertising for remote treatment).

Any limitations must be disclosed in the advertising

Any limitations on the advertised remote medical treatment to treatments that do not require personal contact between the doctor and patient must be stated in the advertisement itself, not merely in a notice on a linked landing page (see OLG Karlsruhe, judgment of 22.12.2022 – 4 U 262/22 – advertising by an online pharmacy marketplace operator for the use of video consultations with doctors).

Examples of remote treatment prohibited under § 9 HWG

Prohibition on the referral of patients by doctors

Commissions and performance bonuses for referred patients

Under § 31 of the Model Professional Code for Physicians (MBO), doctors may not demand, accept a promise of, or allow themselves or others to be promised or granted an advantage in return for referring patients or examination samples, or for prescribing or obtaining medicines, medical aids or medical devices. Without good reason, they may not recommend specific doctors, pharmacies, providers of therapeutic or medical aids, or other healthcare providers to their patients, or refer patients to them.

Doctors and dentists must act in the patient’s best interests. A business model involving a dentist is impermissible if it creates a risk that the dentist will treat patients based on their own financial interests rather than the patients’ best interests. This must be determined on a case-by-case basis (Federal Court of Justice, judgment of 21 May 2015 – I ZR 183/13 – Bonus for Customer Acquisition).

Prohibition on doctors charging below the statutory fee

Flat-rate discounts prohibited

A blanket discount on medical treatment fees without an individual agreement between the doctor and patient is prohibited under Sections 1 and 5 of the German Medical Fee Schedule (GOÄ) and is also an unfair commercial practice under Section 3a of the German Act Against Unfair Competition (UWG). This is because it breaches statutory provisions intended to regulate market conduct in the interests of market participants, and the breach is capable of materially harming those interests. The GOÄ provisions are intended to regulate doctors’ billing practices in the interests of patients and to counter ruinous price competition among doctors in the interests of a properly functioning healthcare system.

The German Medical Fee Schedule (GOÄ) applies only to doctors, not to a medical practice GmbH

However, the German Medical Fee Schedule (GOÄ) applies exclusively to doctors as contracting parties to patients under the treatment agreement. Companies, such as a medical practice GmbH, may therefore agree prices freely if they enter into the treatment agreement with the patient and provide the contracted treatment through an employed doctor or a fee-basis doctor whom the company, rather than the patient, pays (Higher Regional Court of Frankfurt, judgment of 9 November 2023 – 6 U 82/23 – Discount promotion by a doctor referral service).

Author: Thomas Seifried, Attorney specialising in healthcare advertising law and certified specialist in intellectual property law