Injunctive relief against statements made by the Medical Service of the health insurance funds in expert opinions

According to a recent decision by the Reutlingen Social Court (decision of 13.08.2018 - S 1 KR 414/18 ER), which was obtained by VOELKER, action can be taken against false factual claims in expert reports or expert opinions by the MDK by way of an injunction.

In a recent decision, the Social Court affirmed the prospects of success of a claim for injunctive relief against false factual claims in an expert opinion written by an MDK doctor.

The specific case concerned the MDK expert's statement that a product lacked approval and was not marketable. This was despite the fact that an approval in accordance with Section 4b (3) AMG was available.

However, statements in expert opinions must be differentiated:

Opinions and recommendations cannot be challenged with an injunction due to the statutory independence of MDK doctors in the performance of their medical duties (Section 275 (5) sentence 1 SGB V).

In the case of factual assertions, however, there is a right to injunctive relief or revocation, because just like all other experts and appraisers, they are not obliged to assert untrue facts in appraisals or expert opinions.

Therefore, the statements made by the MDK in expert reports and expert opinions of the MDK must be examined carefully; not every assertion must be accepted.