Telemedical consent discussion: the legal position for ASA I/II patients in Germany and Austria

Hospitals that digitalise their pre-anaesthesia clinic regularly put the same question to their legal departments: may the consent discussion before anaesthesia and surgery for healthy or mildly ill patients take place entirely from home — without an in-person clinic appointment? This article sets out the legal position in Germany and Austria systematically, references the relevant case law of the German Federal Court of Justice (BGH) and the Austrian Supreme Court (OGH), and derives specific requirements for clinical operations. It is aimed at physicians, legal departments and procurement in hospitals — and it expressly names the points that the highest courts have not yet decided.

Why ASA I and ASA II patients in particular?

Summary: The ASA class alone is not sufficient — it is not a legal criterion. The ASA classification (the American Society of Anesthesiologists’ system for grading patients’ physical status) serves here solely as a medical selection criterion: ASA I denotes healthy patients, ASA II patients with a mild, well-compensated systemic disease. Neither the law nor case law contains an ASA threshold for the telemedical consent discussion. ASA I and II are a medical selection grid that in practice serves as a reliable indicator of whether a “straightforward case” within the meaning of case law exists.

Legally, the permissibility of the remote consent discussion does not depend on an ASA class but on indeterminate legal concepts: the Federal Court of Justice speaks of the “straightforward case” and the “routine procedure”, the anaesthesiology societies of the “low-complexity” procedure. In practice, these concepts largely run in parallel, but they are not identical and come from different registers — the legal one on the one hand, the specialist anaesthesiological one on the other. The ASA classification is the instrument that makes the medical side of these concepts operational; the legal assessment must be kept separate from it.

What matters is the distinction between two risk dimensions that are frequently mixed up in practice: the patient-related risk (ASA class, comorbidities, age) and the procedure-related risk (type, duration and invasiveness of the operation). The 2024 joint recommendation of the German Society of Anaesthesiology and Intensive Care Medicine (DGAI), the German Society of Surgery (DGCH) and the German Society of Internal Medicine (DGIM) classifies procedures by 30-day cardiovascular risk into low (<1%), intermediate (1–5%) and high (>5%). For the telemedical consent discussion, both dimensions should be low: an ASA II patient before an oesophagectomy (removal of the oesophagus — a high-risk procedure) is not a medically suitable case for the remote modality; the same patient before cataract surgery or an elective cholecystectomy (removal of the gallbladder) generally is. The low ASA class therefore does not replace the assessment of the procedure — it is only one half of the selection.

Economically, the question is significant: pre-anaesthesia clinics record mean waiting times of 58 minutes per patient (Kieninger et al., Der Anaesthesist 67, 93–108, 2018), with a high volume of ASA I/II cases that medically do not need an in-person evaluation in advance. Every in-person appointment avoided in a legally sound way frees clinic capacity for complex cases.

What requirements does German law place on the consent discussion — and does it rule out the remote modality?

Summary: Section 630e(2) sentence 1 no. 1 of the German Civil Code (BGB) requires the information to be given “orally” — not that it takes place in physical presence. In the legislative procedure for the 2019 Digital Healthcare Act, the legislator expressly clarified that, under existing law, the consent discussion can already take place by means of telecommunication — including video telephony — as long as direct verbal exchange is ensured. The principle of oral communication is therefore — at least according to the explanatory memorandum to the Digital Healthcare Act — not a principle of physical presence.

The 2013 Patients’ Rights Act (Patientenrechtegesetz) codifies the duties to inform in § 630e BGB. In terms of content, the provision requires information on all circumstances essential to consent — nature, scope, performance, consequences, risks, alternatives — and sets three formal requirements: oral communication (no. 1; reference may additionally be made to documents in text form), timeliness (no. 2) and comprehensibility (no. 3). Under § 630e(2) sentence 2 BGB, the patient must be given copies of all documents signed in connection with the consent discussion and consent.

The explanatory memorandum to the Patients’ Rights Act (BT-Drs. 17/10488, p. 24) emphasises the personal conversation with the opportunity to ask questions. What is decisive, however, is the legislator’s later position in the procedure for the Digital Healthcare Act (Digitale-Versorgung-Gesetz, DVG): the 2019 ministerial draft initially provided for an express addition to § 630e BGB covering the telemedical consent discussion. The Federal Government dropped it — with the remarkable reasoning that an amendment was not necessary, because the consent discussion could “already under existing law also take place using means of telecommunication”, “as long as these allow direct verbal exchange between the patient and the treating person”. As examples, the memorandum expressly names “the telephone conversation and video telephony” (BT-Drs. 19/13438, p. 70). In other words: the legislator itself reads the principle of oral communication as covering the video consent discussion.

What does the BGH say? Four decisions that set the framework

There is as yet no ruling by the highest court that specifically concerned the video-assisted consent discussion — that is part of an honest assessment. Four BGH decisions, however, define the framework precisely:

1. BGH, judgment of June 15, 2010 — VI ZR 204/09 (consent discussion by telephone): If, for a simple routine procedure, the patient agrees to being informed about the risks by telephone, this consent discussion is not open to objection. The BGH requires the physician holding the discussion to satisfy themselves in the conversation that the information has been understood, and to be able to respond to individual concerns and questions. If a purely auditory telephone call can already meet these requirements, then according to the clearly prevailing view in the literature, there is all the more reason not to object to the video consultation, which can additionally convey a visual impression (an a fortiori argument: what applies to the medium with less information content applies all the more to the richer one).
2. BGH, judgment of November 5, 2024 — VI ZR 188/23 (limit of digitalisation): The content needed for a self-determined decision must be communicated orally; a consent sheet may only supplement, repeat and illustrate the conversation. This decision marks the hard limit of any digitalisation strategy: asynchronous formats — consent sheets sent out, explanatory videos, chatbots — can prepare and shorten the conversation, but never replace it. This applies equally to the on-site and the remote modality.
3. BGH, judgment of December 20, 2022 — VI ZR 375/21 (timeliness, no waiting period): § 630e(2) sentence 1 no. 2 BGB does not provide for a “waiting period” between the consent discussion and consent. The consent discussion must take place early enough for the decision to be made in a well-considered way; the patient decides when to give consent. For the remote consent discussion, this is doubly relevant: a video conversation several days before the procedure can often meet the timeliness requirement better than the consent discussion on the day of admission that is common in many hospitals. On continued validity: according to BGH, judgment of January 28, 2014 — VI ZR 143/13, consent can still be effective after six weeks; the DGAI recommends assessing a consent discussion held more than three months earlier critically, and after more than six months a new consent discussion is required (OLG Dresden, order of November 15, 2016 — 4 U 57/16).
4. BGH, order of August 16, 2022 — VI ZR 342/21 (individual risk profile): The consent discussion must be based on the specific risk profile of the individual patient; a form that plays down individual risks constitutes a failure to inform. For the remote consent discussion, it follows that the telemedical conversation and the accompanying documents must also be personalised — generic standard content does not meet the standard.

Professional law and professional societies: § 7(4) MBO-Ä and the 2024 DGAI recommendation

In terms of professional law, the 121st German Medical Assembly in 2018 revised § 7(4) sentence 3 of the (Model) Professional Code for Physicians (MBO-Ä) to permit exclusively remote treatment in individual cases where this is medically justifiable, the necessary care is taken and the patient is informed about the particularities of remote communication. It should be noted that implementation takes place in the professional codes of the state medical associations and may differ in detail — the applicable state professional code must therefore always be checked as well.

In professional terms, the remote consent discussion in anaesthesiology received express recognition in 2024: the joint recommendation of DGAI, DGCH and DGIM on preoperative evaluation (Zöllner et al., Anästh Intensivmed 2024;65:240–270) devotes a section of its own (A.1.4.2) to the remote consent discussion and states in recommendation E10: “For simple surgical procedures, conducting the preoperative consent discussion as a remote consent discussion MAY be considered.” The recommendation names four cumulative requirements — a low-complexity routine procedure, available technical means, cognitive suitability and the patient’s agreement — and expressly recommends introducing a detailed concept in consultation with the legal department of the hospital operator. The professional societies also confirm that the digitalised, legally compliant and video-assisted remote consent discussion has become an established procedure and allows the physician holding it to gain an overall impression of the patient.

What is the legal position in Austria — particularly since the 2024 amendment to the Physicians Act (ÄrzteG)?

Summary: Austria has no codification of the form of the consent discussion comparable to § 630e BGB; the requirements derive from the treatment contract and the case law of the OGH. Since January 1, 2024, § 49(2) ÄrzteG 1998 has expressly anchored telemedicine in medical professional law (“personally and directly, but also by using telemedicine”). The OGH holds to the irreplaceable consent discussion with the physician but — as far as can be seen — has not yet expressly ruled on its telemedical delivery. Recent medical law literature predominantly takes the view that the remote consent discussion is permissible if there is a sufficient basis for the decision and the risks of remote communication can be controlled.

In Austria, the duty to inform follows from the treatment contract in conjunction with the standard of care under § 1299 of the Austrian Civil Code (ABGB; the liability provision for members of specific professions) and — for hospitals — from the patients’ rights provisions of the Federal Hospitals and Sanatoria Act (KAKuG) and the Patients’ Charter. The standard has been shaped by OGH case law. Three lines are decisive for the remote consent discussion:

• The conversation cannot be replaced. According to OGH 8 Ob 140/06f, it is not sufficient for fulfilling the physician’s duty to inform “to obtain a declaration of consent to the surgical procedure by bureaucratic means; rather, the direct personal consent discussion with the physician cannot be replaced by anything”. This formula is directed against form-based practice — it does not prohibit remote communication, but it requires a genuine, two-way conversation with the physician. Functionally, this corresponds to the German principle of oral communication.
• The scope of the information increases as urgency decreases. According to settled case law (including OGH 4 Ob 12/10h), the less urgent the procedure, the further the duty to inform extends — furthest, therefore, for elective procedures, up to and including reference to extremely rare risks. This concerns the content of the consent discussion, not the modality per se; but it means that, especially for plannable procedures in ASA I/II patients, the remote conversation must be complete in content and must not become a “consent discussion light”.
• The basis is the right to self-determination. Without effective information and consent, treatment is in principle unlawful, even if it was medically indicated and performed lege artis (according to the rules of the medical art); the burden of proof for a proper consent discussion lies with the treating party (settled case law, including RIS-Justiz RS0026413).

In terms of professional law, remote treatment in Austria was long disputed because § 49(2) ÄrzteG required the profession to be practised “directly” (principle of immediacy). With the Vereinbarungsumsetzungsgesetz 2024, the legislator expressly included telemedicine in the statutory text as of January 1, 2024, largely defusing the debate (overview of the legal position on telemedicine in Austria). For the consent discussion in particular, recent medical law literature predominantly takes the view that the established criteria continue to apply: according to Huber/Dietrich, “Rechtsfragen der Fernaufklärung” (JMG 2024), the standards of a sufficient basis for the decision and of risk control also apply to the telemedical consent discussion; a conversation by video telephony is accordingly permissible if no physical contact — such as a palpation — is required for the specific medical service. This literature is, however, still recent and, as far as can be seen, has not been confirmed by the highest court. In substance, it fits the pure risk information before simple elective procedures: the physical examination is part of the preoperative evaluation, not of the consent discussion, and can — where medically justifiable — take place separately on the day of admission.

The remaining uncertainty must be stated honestly: as far as can be seen, the OGH has not yet had to decide a case in which the effectiveness of a consent discussion held by video was in dispute. Hospitals in Austria are therefore following a well-founded line that has not yet been confirmed by the highest court — one more reason for careful patient selection and documentation, not a reason to forgo it altogether. The article Informed consent in Austria: legal position and practice provides a more detailed account of the overall legal position in Austria.

Germany and Austria compared: where are the differences?

Summary: Both legal systems require an irreplaceable consent discussion with a physician and, according to the prevailing view, do not preclude its telemedical delivery in straightforward cases. Germany relies on the explanatory memorandum to the DVG and the BGH case law on the consent discussion by telephone; Austria on the 2024 amendment to the ÄrzteG and the criteria set out in the literature. In both countries, there is no ruling by the highest court specifically on the video consent discussion.

What requirements must a hospital meet to hold the consent discussion with ASA I/II patients entirely by telemedicine?

Summary: The telemedical consent discussion becomes legally sound through a documented concept with clear patient selection, the patient’s agreement, a synchronous video conversation with a physician with the opportunity to ask questions, timely delivery, digital hand-over of the documents, documentation that stands up as evidence, and defined criteria for escalating back to an in-person appointment. The following nine points summarise the requirements of the law, case law and the DGAI recommendation.

1. Patient selection by a twofold criterion: low patient-related risk (in anaesthesia typically ASA I and ASA II) and a straightforward, elective procedure with low or intermediate procedure-related risk. The selection criteria should be defined in writing as an internal hospital standard. (DGAI/DGCH/DGIM 2024, recommendation E10)
2. Agreement to the remote modality: The patient must agree to the telemedical delivery (BGH VI ZR 204/09) and be informed about the alternative of an in-person conversation and about the particularities of remote communication (§ 7(4) MBO-Ä; in Austria, the requirement of comprehensive information about the treatment modality). This agreement must be documented. (BGH VI ZR 204/09; § 7(4) MBO-Ä)
3. Synchronous conversation held by a qualified physician: The consent discussion takes place in real time — compared with the telephone, video telephony regularly offers additional means of assessing the patient because it conveys the overall visual impression — and is held by the treating physician or a person with the training needed to perform the measure (§ 630e(2) sentence 1 no. 1 BGB). Questions must be possible at any time; the physician must satisfy themselves that the patient has understood. (§ 630e(2) sentence 1 no. 1 BGB; BGH VI ZR 204/09)
4. Personalised content: The conversation and accompanying documents must reflect the individual risk profile (BGH VI ZR 342/21). Generic consent sheets without reference to pre-existing conditions, medication and the specific procedure do not meet the standard. (BGH VI ZR 342/21)
5. Timeliness: The consent discussion must take place early enough for a well-considered decision to be possible (§ 630e(2) sentence 1 no. 2 BGB; BGH VI ZR 375/21). A remote consent discussion days before the procedure can often meet this requirement better than the consent discussion on the day of admission. If the consent discussion took place some time ago, the limits of continued validity apply (critical review from three months, a new consent discussion after six months). (§ 630e(2) sentence 1 no. 2 BGB; BGH VI ZR 375/21; VI ZR 143/13; OLG Dresden 4 U 57/16)
6. Hand-over of the documents: Copies of all signed documents must be handed over — in digital processes as a copy to the patient immediately after electronic signature. (§ 630e(2) sentence 2 BGB)
7. Documentation that stands up as evidence: The treating party bears the burden of proof for a proper consent discussion (§ 630h(2) BGB; in Austria, a comparable allocation of the burden of proof under OGH case law). Modality, date, duration, the person holding the consent discussion, essential content, individual questions and consent must be documented — ideally in an audit-proof electronic evidence trail with an electronic signature under the eIDAS Regulation. (§ 630h(2) BGB; OGH RS0026413; eIDAS Regulation Art. 25 et seq.)
8. Criteria for escalating to an in-person appointment: The concept must define when to switch to an in-person conversation — for example in the case of comprehension problems, language barriers, technical faults, unexpected findings in the medical history or at the patient’s request. The physical examination (including airway assessment and auscultation) remains part of the preoperative evaluation; whether — where medically justifiable — it can be performed on ASA I/II patients only on the day of admission is decided not by the law but by the medical standard in the individual case. (DGAI/DGCH/DGIM 2024, recommendation E1; § 7(4) MBO-Ä)
9. Data protection, security and coordination: Video communication involving health data is subject to Art. 9 and Art. 32 GDPR (special categories of data, technical and organisational measures); suitable services operated in Europe must be chosen. The DGAI expressly recommends coordinating the overall concept with the legal department of the hospital operator — coordination with the liability insurer is also advisable (see HDI-compliant patient education). (Art. 9, 32 GDPR; DGAI/DGCH/DGIM 2024, section A.1.4.2)

How does medudoc support the legally sound telemedical consent discussion?

Summary: medudoc digitalises the preoperative process from the medical history to informed consent and supports the physician’s consent discussion in both modalities — on site and by telemedicine. The workflow engine uses rules specific to each client to determine which patients are suitable for the remote modality; the mandatory consent discussion itself remains in the physician’s hands.

medudoc’s digital patient intake platform is designed to support the requirements described above in the process. Patients enter their medical history and findings digitally from home in advance; in the rule-based workflow engine, the hospital defines its own thresholds above which a telemedical consent discussion is sufficient or an in-person appointment is required — with a low risk profile (in anaesthesia typically ASA I and ASA II), the entire consent process can take place from home. Patient education videos and IC Sheets (the digital, signed consent documents), compiled individually for each patient and sent out in advance, prepare, shorten and document the conversation — they do not replace it. This division of labour is exactly in line with BGH VI ZR 188/23: the core relevant to the decision is communicated orally, while the digital content supports understanding and evidence. The page on the digital preoperative workflow describes the overall process in detail, and the page on video-assisted patient education covers the video component.

Medical evidence must be kept separate from legal permissibility: studies do not prove the lawfulness of a procedure but its clinical effectiveness and safety. The prospective, cluster quasi-randomised study at University Hospital Würzburg shows that video-assisted preparation measurably reduces the burden of the conversation without lowering patient satisfaction: the median physician conversation time fell from 8.1 to 1.5 minutes before cholecystectomy (−81%, p < 0.0001) and from 11.9 to 3.3 minutes before colon resection (−72%); understanding and satisfaction remained high in both groups (Leicht et al., World J Surg 2026; 50(10): 2866). At Cantonal Hospital St. Gallen, more than 92% of the participating physicians said they would not want to do without the video-assisted consent discussion in future. These data support the clinical rationale but do not replace the legal assessment in the individual case set out above. On the documentation side, medudoc supports electronic signatures at all eIDAS levels, immediate digital hand-over of the signed documents and a complete electronic evidence trail. The page on the legal basis of patient education provides an overview of the legal requirements in the DACH region; the article Informed consent 2026: the current legal position summarises current developments.