Latest updates

Reimbursement for medicine not listed in Reimbursement Code?
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 21 October 2020

Although Austrian social security provides for a legal entitlement to benefits in kind (ie, free administration of medicines listed in the Reimbursement Code, except for a small prescription fee), the Organisation of Austrian Social Security is reluctant to reimburse the cost of medicines not listed in the Reimbursement Code. A recent Supreme Court decision shows that this restrictive approach is supported by the Austrian courts.

Constitutional Court overrules COVID-19 restrictions
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 02 September 2020

In March 2020 the legislature enacted the COVID-19 Measures Act, which authorised the Federal Ministry for Social Affairs, Health, Care and Consumer Protection to enact regulations prohibiting access to business premises to the extent necessary to prevent the spread of COVID-19. Based on this provision, the ministry enacted the COVID-19 Measures Regulation; however, the Constitutional Court recently overruled Sections 1, 2, 4 and 6 of the regulation.

Relevance of expert guidelines for assessing medical malpractice
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 01 July 2020

Recent case law suggests that, although medical society and other expert committee guidelines are non-binding, they may serve as evidence to specify current medical standards. However, as they cannot be considered on the same level as medical standards, the application of such guidelines to specific cases requires an expert assessment.

Leucopenia medicine and reimbursement code
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 11 March 2020

A landmark Supreme Administrative Court decision concerning Onpro Kit, a medicine for treating chemotherapy-induced leucopenia, provides further clarity on the inclusion of medicines in the Main Association of Austrian Social Security Institutions' reimbursement code. The court examined the special circumstances in which a medicine is inappropriate for use in the course of medical treatment because it is designated for use predominantly in hospital treatments.

Digital health: proposal to amend Health Telematics Act
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 19 February 2020

The Ministry of Health recently provided Parliament with a draft amendment to the Health Telematics Act for public consultation. The proposal aims to remedy a number of challenges relating to Austria's existing immunisation system through the introduction of electronic immunisation cards and a central register of vaccinations.

'Medical meets Beauty' – recent decision on dental sector advertising
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 27 November 2019

The Austrian professional rules for dentists are strict and restrictive and permit advertising only within tight limits. Recent case law suggests that the Chamber of Dentists is highly active in enforcing both the Directive on Advertising and the Dental Act. Under the directive, print media ads must not exceed quarter of a page and dentists must not use unobjective advertising (eg, ads which promise patients non-dental advantages or services).

Alternative medical treatments and compassionate use
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 25 September 2019

Patients who are beyond treatment under the standards of conventional medicine often seek help from alternative medical treatments; however, these methods pose not only medical risks for patients, but also legal risks for doctors. A recent Supreme Administrative Court decision appears to favour a liberal approach to new therapies and compassionate use and enhances the possibilities for developing new therapies and alternative medicines in future.

Maintaining original medicinal products in Reimbursement Code
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 24 July 2019

When a generic is added to the Reimbursement Code, the product manufacturer or authorised distributor must reduce its price in order for the product to remain therein. If the Main Association of Social Security Institutions and the product manufacturer or authorised distributor cannot agree on a price, the product will be removed from the Reimbursement Code. A recent Supreme Court decision provides important considerations for maintaining original medicinal products in the Reimbursement Code.

Cannabidiol in food and cosmetics
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 15 May 2019

While there are signs of greater liberalisation with respect to hemp use internationally, the Austrian government has resisted this trend. In October 2018 the Ministry of Labour, Social Affairs, Health and Consumer Protection published a decree outlining its legal opinion on product regulations which prohibit CBD use in food and cosmetics. However, rather than providing legal certainty, the decree merely reflects headlines relating to the government's narcotics programme.

Social security system to undergo restructure – but will it achieve cost savings?
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 20 March 2019

The Austrian social security system has been characterised by regional and occupational fragmentation and the domination of employee representatives. However, a recent amendment to the Social Security Act proposes merging the provincial social security institutions with the company insurers into one Austrian Health Insurer, which will be the only provider of employee health insurance.

Amendment to Act on the Medical Profession
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 23 January 2019

The two chambers of the Austrian Parliament recently adopted the government bill on the amendment of the Act on the Medical Profession. The amendment will enter into force following its publication in the Law Gazette, which is expected in late January 2019.

Misleading comparative advertising of drugs
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 28 November 2018

The Supreme Court recently ruled in an interesting case relating to comparative advertising. The court ultimately found that the challenged announcement was 'comparative advertising' within the meaning set out in Section 2a(1) of the Unfair Competition Act, as it directly and indirectly identified a competitor and its goods and services. The decision follows the letter of the law and perfectly summarises the legal structure regarding comparative and drug advertising in Austria.

No liability for in-depth specialist knowledge
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 07 November 2018

The Supreme Court recently provided an extensive description of the principles of medical liability and held, in concrete terms, that the standard of care principle must not be overstretched. The court confirmed that the expert liability provided for in the General Civil Code is based on an objective standard and thus depends on the usual diligence of the persons who carry out the activity in question. As such, the performance standard of the occupational group concerned will be a decisive factor.

Detox capsules
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 05 September 2018

The Supreme Court recently ruled on the advertising of a product which sits in the grey zone between medicinal products, medical devices and foodstuffs. Among other things, the plaintiffs had originally requested that the defendant be prohibited from offering and distributing products containing zeolite and bentonite as medical devices if they were not authorised as such, including disease-related information in the advertising of those products and promoting the products as "vegan, lactose-free and gluten-free".

Spiritual healing – no (illegal) quackery
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 27 June 2018

The delineation between medical treatment and quackery is not always easy to draw. A recent Supreme Administrative Court decision has brought some clarifications as to what constitutes legitimate medical treatment as opposed to illegal quackery.

Fat-burning injections – medical information from beauticians
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 25 April 2018

A client recently sued her beautician because of an unsuccessful fat-burning injection treatment. The first-instance court granted the plaintiff two-thirds of her claim, holding that the defendant had had the same obligation as a physician to provide medical information on the risks and complications. However, as the plaintiff had been aware of the defendant's inexperience, she was responsible for the contributory fault, which reduced her claim by one-third.

Medical confidentiality and right to refuse to give evidence
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 28 February 2018

In general, a healthcare professional may testify on observations made in respect of a patient only if he or she has been released from the obligation of confidentiality by the patient personally. However, there are a few limited exceptions to this general rule. The Supreme Court carefully applied these exemptions in a recent decision on the hypothetical release by a deceased person.

Medical information and informed consent
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 03 January 2018

Providing patients with insufficient medical information may impede their ability to give informed consent to proposed medical treatments and thus may trigger the tort liability of physicians or healthcare institutions. However, a March 2017 Supreme Court decision has reduced the scope of the medical information that must be provided to patients.

Assessing demand for public pharmacies – a never-ending story
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 04 October 2017

Public pharmacies are heavily regulated in Austria. The opening of new (or the relocation of existing) pharmacies is subject to approval by the district authority. Approval will be granted only if there exists a viable need for the new public pharmacy. In a recent case, two courts ignored a 2016 amendment to Section 10 of the Pharmacies Act, which allowed a deviation from the strict 5,500 person limit set out therein.

New price cap for medicinal products
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • 19 July 2017

After 14 months of negotiations between the Federation of Austrian Social Security Institutions and the pharmaceutical industry, and lengthy discussions within the government coalition, Parliament recently adopted a new price cap for expensive medicinal products and a new price regime for generics and biosimilars. The government, social security institutions and the legislature hope that these amendments will create further savings in relation to expenses for medicinal products.