Unlawful customer poaching by health insurance companies

Does it constitute unlawful customer poaching by a health insurance company if it attempts to persuade a patient to switch to dentists affiliated with the insurer in a network by offering a discount? Yes, according to the Higher Regional Court (OLG) Dresden.

A dental group practice took action against a private health insurance company. An insured person submitted a treatment plan to the health insurance company. The health insurance company then sent the insured person a letter in which the contractual settlement of the costs incurred for treatment was promised.

The insurer also pointed out the right to free choice of doctor, but on the other hand also promoted "benefits when treated by our healthcare partner". Furthermore, it promised:

If you choose our healthcare partner, your reimbursement entitlement for dental laboratory services will even increase by 5 %.

The dental practice was of the opinion that the insurer's conduct constituted unfair competitive customer poaching and sued. The court of first instance dismissed the action, whereupon the dental practice appealed to the Higher Regional Court (OLG) Dresden.

Unlawful customer poaching by health insurance companies

The Higher Regional Court (OLG) Dresden (judgment of 09.10.2020, Az. 14 U 807/20) saw in the insurer's conduct a customer poaching which in this form was not compatible withcompetition law.

The insurer's offer to increase the cost reimbursement by 5 % if the patient is treated by one of the insurer's network partners constitutes unlawful, targeted obstruction of competitors. This establishes the cessation claim asserted, according to the judges.

For by this conduct, the insurer acts in an inappropriate manner upon customers in order to win them as customers for its network partners. The insurer thus places itself more or less between the dental practice and its insured person in order to impose a change to their already made decision upon them.

The insurer misused its position as a health insurance company in a procedurally unrelated manner in order to redirect demand to its network partners. With the 5 % reference, the insurer interferes with the insured person's right to free choice of doctor.

Conclusion

It constitutes unlawful customer poaching by a health insurance company if the insurer uses its key position to persuade a patient to switch to dentists affiliated with the insurer in a network by offering a discount.