Co-Author: My Anh Cao
In its reference decision of 15 August 2023 (Ref.: 5 U 93/22), the Hanseatic Higher Regional Court of Hamburg ruled on the issuing of prescriptions for prescription-only medicines over the internet by doctors who have not previously treated the patient.
The plaintiff is a registered association that pursues commercial and independent professional interests. The defendant operated a software platform that advertised the issuing of prescriptions for prescriptions-only medicines over the internet by doctors who had not previously treated the patients (so-called follow-up prescriptions). The plaintiff was of the opinion that the issuing of prescriptions for prescription-only medicines by a doctor who had not previously treated the patient constituted a breach of competition law.
In its decision, the Hanseatic Higher Regional Court of Hamburg ruled that the Regional Court of Hamburg was correct to grant an injunction under competition law pursuant to Sections 8, 3a UWG in conjunction with Section 7 para. 3 of the Professional Code of Conduct for Doctors in Hamburg and pursuant to Sections 8, 3a UWG, 9 HWG. The issuing of a follow-up prescription for a prescription-only medicine without personal contact with the patient is in breach of the doctor's professional duties. In the present case, Section 7 para. 3 of the Professional Code of Conduct for Doctors in Hamburg applies, which mandates personal contact and only exceptionally provides for exclusive counselling or treatment via communication media if this is medically justifiable and medical diligence is observed. This was not the case with the prescription service offered. A breach of medical diligence has been committed, as it is not possible to ensure that the purpose of the prescription obligation has been fulfilled. A prescription request by telephone may be sufficient for a follow-up prescription. However, it is necessary that the prescribing doctor has already treated the patient and is informed about the patient's state of health and the necessity of prescribing this medicine. In addition, the doctor must also arrange for certain examinations of the patient at certain intervals for subsequent prescriptions. Section 7 para. 3 of the Professional Code for Doctors in Hamburg is a market behaviour regulation within the meaning of Section 3a UWG, since the doctor is not guided solely by medical considerations with a view to the patient's welfare, but by extraneous economic self-interest. The fact that the defendant merely operates a software platform and does not itself practise the medical profession is irrelevant, as the defendant is directly responsible with regard to the claim for injunctive relief under competition law. It had offered and disseminated the business model via its website. A person who is not himself a norm addressee acts unfairly within the meaning of Section 3a UWG if he incites or supports third parties subject to the law to violate market behaviour regulations within the meaning of Section 3a UWG.
Furthermore, the advertising ban for remote treatments pursuant to Section 9 HWG was infringed. The issuing of a follow-up prescription is a remote treatment within the meaning of Section 9 sentence 1 HWG, as the patient is only personally perceived by the treating doctor if the possible examination methods can be applied with the simultaneous physical presence of doctor and patient in one room, which is not the case here. The exceptional provision of Section 9 sentence 2 does not apply either, as the defendant, which is burdened with the burden of presentation and proof, has not demonstrated that the general professional standard is met.
This is important | To Do: The decision must be supported, in particular for the benefit of patients, who must be protected from having access to prescription drugs that they do not (or no longer) need and can therefore cause harm/addiction. Without a physical presence, this cannot be easily ensured. However, the development of general professional standards for the purely digital issuing of follow-up prescriptions in the future, where patient safety is guaranteed, would be welcome. For instance, people with limited mobility would benefit from such an approach.
