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Preslmayr Attorneys at Law | Austria | 8 Sep 2021

Strict advertising rules for (foreign) dentists

The Chamber of Austrian Dentists and Dental Specialists is active in protecting the interests of its members and fending off the intrusion of foreign practitioners. In October 2020 it sought an interim injunction to prevent a German limited liability company from advertising medical products, quoting prices for private dental services in public announcements or having such prices quoted, and......
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Preslmayr Attorneys at Law | Austria | 16 Jun 2021

No profit from blood donations

The Supreme Court recently had to decide whether a lump-sum compensation for expenses must be considered profit. According to Section 8 of the Blood Safety Act (BSG) 1999, blood and plasm donors must not make a profit by donating blood or plasm. The law uses the terms "profit" and "compensation of expenses" only in Section 8(4) of the BSG. The concentration of these terms in one single......
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Preslmayr Attorneys at Law | Austria, European Union | 28 Apr 2021

Court dismisses complaint against limitations on sale of medicinal products

The Act on Medicinal Products and the Trade and Industry Act set strict rules on the sale of medicinal products. The German-Austrian drugstore chain, dm, brought a constitutional complaint against these limitations. In a decision which is likely to disappoint those in favour of market liberalisation, the Constitutional Court recently dismissed the complaint.
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Preslmayr Attorneys at Law | Austria | 10 Mar 2021

Ascertainment of (dis)conformity of in vitro diagnostics

The Supreme Court of Justice recently found that a party involved in the marketing of in vitro diagnostics devices did not infringe the Act on Medical Devices or EU Directive 98/79/EC because the devices in question bore the CE mark. The decision clarifies that only the Federal Office for Safety in Healthcare is competent to ascertain whether a CE mark is correctly affixed.
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Preslmayr Attorneys at Law | Austria | 3 Feb 2021

Medical information duty: what constitutes reasonable steps to contact a patient?

The medical information duty comprises the obligation to inform a patient of possible dangers and negative consequences of a treatment or failure to have such treatment. This information duty exists not only if the patient's consent to a medical treatment is required, but also if the patient must make an informed decision to refrain from having further medical treatment. However, as......
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Preslmayr Attorneys at Law | Austria | 6 Jan 2021

Restriction of freedom in nursing homes due to risk of COVID-19 infection

The Supreme Court recently ruled that nursing homes can restrict residents' freedom by isolating them in their room. The resident in question had been isolated in his room in an attempt to prevent the spread of COVID-19 among the other nursing home residents. This decision shows the interaction between protecting the freedom of nursing home residents and challenges caused by the COVID-19......
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Preslmayr Attorneys at Law | Austria | 21 Oct 2020

Reimbursement for medicine not listed in Reimbursement Code?

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......
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Preslmayr Attorneys at Law | Austria | 2 Sep 2020

Constitutional Court overrules COVID-19 restrictions

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......
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Preslmayr Attorneys at Law | Austria | 1 Jul 2020

Relevance of expert guidelines for assessing medical malpractice

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.
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Preslmayr Attorneys at Law | Austria | 11 Mar 2020

Leucopenia medicine and reimbursement code

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......
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