Advertising with telehealth services and fictional specialist title

A physician who advertises with 'expert consultations by telephone and video' and thus with telehealth services, as well as non-existent specialist titles, behaves in a manner contrary to competition law. This was the finding of the Regional Court (LG) Koblenz – correctly?

An association for the promotion of commercial interests took action against a physician on account of his email advertising. The physician advertised with 'expert consultations by telephone and video', presented the treatment process thereby and advertised with 'diagnostics for all organ systems'.

The physician furthermore advertised that he was a specialist in 'acupuncture, hypnosis, sexual medicine, psychoneuroimmunology, energy and space medicine'.

Misleading conduct throughnon-existent specialist titles

The Regional Court (LG) Koblenz (Urteil vom 20.07.2021 – Az. 1 HK O 29/21) correctly sets out that specialist titles may only be used if this results from the continuing education regulations of physicians. Such a specialist dentist title is granted by the respective competent regional physicians' chamber and may not be used without the granting of recognition.

The term 'specialist' therefore stands for a specialization that is demonstrated by the acquisition of corresponding knowledge and thus entitles to the use of the specialist title.

It is therefore impermissible to advertise with specialist titles that do not exist at all. In the absence of further specification and clarifying notice, consumers assume that a physician who describes himself as a 'specialist' has completed the corresponding continuing education.

Breach of the prohibition on advertising telehealth services

Telehealth exists when a diagnosis is made or a treatment proposal is given solely on the basis of written, telephone, or other mediated distance communication or communication through third parties, without the physician having personally seen or examined the patient.

Advertising for telehealth services is fundamentally prohibited under the HWG. As an exception, advertising for telehealth services is permitted if, according to generally recognised professional standards, personal medical contact with the person to be treated is not required.

The standard for 'generally recognised professional standards' is derived from the Model Professional Regulations for Physicians, which state:

Exclusive counselling or treatment via communication media is permitted in individual cases if this is medically justified and the required medical care is ensured in particular through the manner in which findings are gathered, advice provided, treatment administered and documented, and the patient is also informed of the particular features of exclusive counselling and treatment via communication media.

According to the Regional Court (LG) Koblenz, there was a lack of justification as to why, according to generally recognised professional standards, personal medical contact with the person to be treated is not required for 'diagnostics for all organ systems'. Therefore – according to the court – there is a breach of the Medicinal Advertising Act (HWG).

Conclusion

Physicians may advertise with specialist titles only for those areas that are designated as 'disciplines' in the continuing education regulations of physicians. Should the physician have acquired in-depth knowledge in an area not designated as a discipline in the continuing education regulations of physicians and wish to advertise for this, a designation must be chosen that does not give rise to the expectation of a corresponding specialist title.

With regard to advertising for telehealth services, the decision of the Regional Court (LG) Koblenz is not convincing. The liberalisation of advertising for telehealth services pursued by the legislator does not presuppose that the physician justifies within the advertisement why personal medical contact is not required for the advertised treatment. The physician must 'only' ensure that his advertising refers only to treatments for which telehealth services are fundamentally possible according to 'generally recognised professional standards'. The 'treatment model' advertised by the physician must give him the possibility of deciding in each individual case whether telehealth services also meet these standards in the concrete individual case, i.e. in the concrete physician-patient relationship.