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Scope of compensation in the event of faulty (statutory health insurance) dental care
If a patient with statutory health insurance receives faulty dental treatment, the parties often argue about the extent of the damages to be compensated. In an older decision, the Federal Court of Justice once formulated in general terms that it depends on the appropriateness of the damage repair, i.e. all expenses are eligible for compensation which, from the point of view of a reasonable person, appear to be appropriate and reasonable in the given circumstances (see BGH VersR 1970, 129). As most people generally consider themselves to be “reasonable people”, this formulation is unfortunately only of very limited use in practice. The Düsseldorf Higher Regional Court formulated it somewhat more concretely in a decision. It stated that the claim for compensation of a health insurance patient who has to undergo a new dental and dental prosthetic treatment after incorrectly performed dental treatment must be based on the type and extent of the health insurance treatment provided by the dentist (see OLG Düsseldorf VersR 1961,884).
Based on these principles, a patient who has agreed with a dentist to have a prosthesis repaired on a statutory health insurance basis, for example, cannot generally demand the costs of an implant restoration from the dentist in the event of incorrect treatment by the dentist (see OLG Celle, judgment of 17.6.2002, Ref. 1 U 82/01). However, something else may apply if an implant treatment is the only medically sensible treatment, i.e. conventional health insurance treatment is no longer possible. Such a determination would have to be made by an expert.
The question of implant treatment should not be confused with the case of damage occurring outside of the treatment actually agreed. If, for example, a misdiagnosis entitling the patient to compensation (e.g. due to late detection of a carcinoma of the floor of the mouth) results in the loss of teeth, the patient cannot be referred to a treatment of the lowest (health insurance) standard. In this case, a restoration with implants is generally covered by the claim for compensation even if a less expensive bridge restoration would be possible. Nothing else can apply here than in the case of any other damage event (see, for example, OLG Dresden, judgment of February 1, 2004, case no. 7 U 1994/03).
Other expenses, such as necessary additional travel costs, and reasonable compensation for pain and suffering can also be claimed as damages. However, in the case of a simple faulty dental treatment (e.g. faulty bridge) that can be repaired without major complications, it is often questionable whether the insignificance threshold for a claim for compensation for pain and suffering has been reached.
In the case of incorrect treatment that may cause consequential damage or where the follow-up treatment has not yet been completed, consideration should also be given to securing these future material and immaterial damages in the form of a binding acknowledgement or a court application for a declaratory judgment.
Obligation to pay lost dental fees
If a patient concludes a written treatment agreement with a dentist via an ordering system, i.e. a system in which a specific appointment is reserved exclusively for the patient and the patient has no waiting times, then the dentist can claim the fee he has lost if the patient does not cancel the appointment within the agreed period.
In this case, the patient had not canceled a treatment appointment 48 hours in advance as agreed and therefore had to reimburse the dentist for the lost fee of well over one thousand euros. The court also did not consider the written treatment agreement to be unreasonably disadvantageous to the patient.
(AG Nettetal, judgment of 12.09.2006 Ref.: 17 C 71/03)