LG Meiningen: Jameda rating inadmissible if contact with practice staff not proven

04.06.2019 From Dominik Wolsing, LL.M.

In a recent judgment in interim injunction proceedings, the Meiningen Regional Court once again made it clear in a nutshell that the rating of a doctor on a doctor rating platform is inadmissible without proven treatment contact.

The court thus follows the case law of the BGH (BGH, Urteil v. 1.3.2016, Az. VI ZR 34/15). According to the Meiningen Regional Court, this principle also applies if the alleged patient claims that he was turned away by the practice staff before treatment despite being in severe pain, but has not proven this.

The doctor rating platform is also subject to review obligations that it did not fulfill in this case. Simply requesting a description of the practice and the month and year of treatment is not sufficient (LG Meiningen, Urteil v. 22.5.2019, Az. (117) 2 O 274/19, nicht rechtskräftig).

Jameda review contained serious accusations

The applicant, a general practitioner in private practice, objected to a review by an alleged patient who had claimed on the doctor review portal jameda.de to have been “turned away” by the applicant’s staff despite being in severe pain. The applicant was given an overall rating of 6.0.

Understandably, the doctor did not want to put up with this. After all, the unjustified refusal of treatment by a doctor is not only a violation of the Hippocratic oath (which is no longer mandatory in Germany, but is still important as a code of honor), but may also constitute a failure to render assistance punishable under § 323c of the German Criminal Code (StGB).

The applicant therefore reported this review to Jameda as a problem. She complained that the information in the review was not true and denied that the reviewer had actually been in the practice and had been “turned away” by the staff despite severe pain in the kidney area. She stated that she was certain that such an incident had not occurred in her practice after detailed consultation with her practice team.

Jameda had initially temporarily removed the review including the grading from the website, but then republished the review without grades, as it considered the truthfulness of the review to be demonstrated by a brief description of the practice and the mention of the month and year of treatment of the reviewer.

Rating quick test

Jameda could not prove the claim that a pain patient had been turned away

The Meiningen Regional Court affirmed a violation of the applicant’s right of personality. In principle, the burden of presentation and proof for the violation of her rights was on the applicant according to the general rules. However, in the case of negative facts – in this case the lack of contact with the practice staff – the defendant had a secondary burden of presentation and proof. The court ruled that the defendant had not fulfilled its resulting obligations to investigate the alleged facts, citing the case law of the Federal Court of Justice.

This is because the review to be carried out by the portal operator must clearly aim to clarify the justification of the complaint of the doctor concerned. The portal operator must therefore make a serious attempt to obtain the necessary factual basis for this and, in particular, must not simply resort to a purely formal examination (BGH, Urteil v. 1.3.2016, Az. VI ZR 34/15).

According to the Meiningen Regional Court, this also applies if the alleged patient claims that they have already been turned away by the staff. This is because a doctor’s duties sometimes do not begin in the treatment room, but already when the patient enters the practice with severe pain. The accusation of “turning away” may then be very serious, see above.

However, after detailed consultation with her entire staff, the applicant was able to credibly demonstrate that no one with severe pain had been turned away at reception. Jameda was unable to counter this.

General description of practice not sufficient

In the opinion of the Meiningen Regional Court, a description of the practice and the mention of the month and year of treatment are not sufficient to demonstrate the alleged contact with the practice staff.

The Meiningen Regional Court thus applies the case law of the BGH, according to which it is not sufficient to describe the treatment in at least two sentences and to name the treatment period (BGH, Urteil v. 1.3.2016, Az. VI ZR 34/15), to a practice description that is too general.

Rather, Jameda should have asked the author of the review to describe the alleged rejection in the applicant’s practice as precisely as possible and, for example, to have a subsequent treatment or the further course of the medical history outlined. Jameda is liable with regard to this review, as the platform as host provider has become an indirect tortfeasor due to its knowledge of the infringement.

In the event of non-compliance, Jameda faces a fine of up to € 250,000 or up to six months’ imprisonment. The amount in dispute was set at €15,000. The decision is not final. Jameda now has the right to appeal or to clarify the facts of the case in the main proceedings.

UPDATE 2.7.2019

Jameda has appealed to the Thuringian Higher Regional Court against the judgment of the Meiningen Regional Court, so that a decision can also be expected from there.