In its reference determination of August 15, 2023 (Ref.: 5 U 93/22), the Hanseatic Greater Regional Court docket of Hamburg dominated on the issuance of prescriptions for prescription medicines solely on the Web by docs who haven’t beforehand handled the affected person.
The plaintiff is a registered affiliation pursuing industrial and impartial skilled pursuits. The defendant operated a software program platform that marketed the issuance of prescriptions for prescription-only medicines on the Web by docs who had not beforehand handled sufferers (so-called follow-up prescriptions). The plaintiff was of the opinion that the issuance of prescriptions for prescription-only medicines by a health care provider who had not beforehand handled the affected person constituted a violation of competitors regulation.
In its determination, the Hanseatic Greater Regional Court docket of Hamburg dominated that the Regional Court docket of Hamburg was right to grant an injunction underneath competitors regulation in accordance with Sections 8, 3a UWG along side Part 7 par. 3 of the Code of Skilled Conduct for Medical doctors in Hamburg and in accordance with Sections 8, 3a UWG, 9 HWG. Issuing a follow-up prescription for a prescription-only drugs with out private contact with the affected person is in violation of the physician's skilled duties. On this case, Part 7 par. 3 of the Code of Skilled Conduct for Medical doctors in Hamburg applies, which requires private contact and solely exceptionally supplies for unique recommendation or therapy by means of communication media if that is medically justified and medical diligence is noticed. This was not the case with the prescription service supplied. A violation of medical diligence has been dedicated, since it’s not attainable to make sure that the aim of the prescription obligation has been met. A prescription request over the telephone could also be enough for a follow-up prescription. In any case, it’s vital that the prescribing physician has already handled the affected person and is knowledgeable in regards to the affected person's state of well being and the necessity to prescribe this drugs. As well as, the physician should additionally organize for sure examinations of the affected person at sure intervals for subsequent prescriptions. Part 7 par. 3 of the Skilled Code for Medical doctors in Hamburg is a regulation of market conduct throughout the which means of Part 3a UWG, for the reason that physician is just not solely guided by medical concerns in view of the affected person's well-being, however by international financial curiosity. The truth that the defendant solely operates a software program platform and doesn’t himself train the medical career is irrelevant, for the reason that defendant is instantly accountable with regard to the request for injunctive reduction in competitors regulation. He had supplied and disseminated the enterprise mannequin by way of his web site. An individual who is just not himself a recipient of the norm acts unfairly throughout the which means of Part 3a UWG if he incites or helps third events topic to the regulation to violate the principles of market habits throughout the which means of Part third UWG.
Moreover, the ban on promoting for distant therapies in accordance with Part 9 HWG has been violated. Issuing a follow-up prescription is a distant therapy throughout the which means of Part 9 sentence 1 HWG, for the reason that affected person is simply perceived personally by the treating physician if attainable examination strategies could be utilized with the simultaneous bodily presence of the physician and the affected person. in a room, which isn’t the case right here. The distinctive provision of Part 9 sentence 2 is just not utilized but, because the defendant, who’s burdened with the burden of presentation and proof, has not demonstrated that the overall skilled commonplace is met.
That is necessary To do:The choice should be supported, particularly for the advantage of sufferers, who should be shielded from gaining access to prescription drugs that they don’t (or now not) want and might subsequently trigger hurt / dependence. With out a bodily presence, this can’t be simply ensured. Nonetheless, the event of common skilled requirements for the purely digital issuance of follow-up prescriptions sooner or later, the place affected person security is assured, could be welcome. For instance, folks with restricted mobility may benefit from such an method.
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https://www.mondaq.com/germany/life-sciences-biotechnology–nanotechnology/1468316/olg-hamburg-on-the-inadmissibility-of-issuing-pharmaceutical-prescriptions-over-the-internet
