Reference number: 123 C 29/09
ON BEHALF OF THE PEOPLE
Verdict
In the legal dispute
des ***************************************************************,
plaintiff,
Attorney of record: Bernd Brandl, Gleueler Str. 227, 50935 Cologne,
vs.
*******************************************************************,
Defendant,
Authorized representative: ************
the Local Court of Cologne
to the oral hearing of 13.01.2010
by the judge at the local court ***
found to be right:
The defendant is ordered to pay the plaintiff € 1,000 plus interest of 5 percentage points above the base interest rate since March 12, 2009 as well as pre-trial legal fees in the amount of € 155.30.
The defendant is ordered to pay the costs.
The judgment is provisionally enforceable. The defendant may avert enforcement by providing security amounting to 110% of the enforceable amount unless the plaintiff provides security amounting to 110% of the amount to be enforced in each case prior to enforcement.
Facts of the case
The defendant dentist carried out root canal treatment on the plaintiff’s molar 27 in March 2006. On April 3, 2006, two roots of the tooth were filled, and on April 26, 2006, the tooth was provided with a filling. Subsequently, the plaintiff visited the defendant’s practice several times until October 17, 2007. She carried out routine check-ups and dental cleanings, smoothed out irregularities and treated oral mucosal diseases and gingivitis. From November 28, 2007, the plaintiff was treated by another dentist who diagnosed a chronic root inflammation on tooth 27.
The plaintiff claims that he suffered from constant toothache after the defendant’s root canal treatment. After the revision of the root canal treatment in December 2007, the pain suddenly disappeared. The plaintiff accuses the defendant of malpractice. He is claiming compensation for pain and suffering and reimbursement of his pre-trial legal fees.
The plaintiff requests,
order the defendant to pay him appropriate compensation for pain and suffering, but at least € 1,000, plus interest at a rate of 5 percentage points above the prime rate from the lis pendens (March 12, 2009) and the costs of pre-litigation proceedings in the amount of € 155.30.
The defendant requests,
dismiss the action.
According to her claim, the plaintiff never complained of pain following the root canal treatment. There was also no root inflammation during her treatment.
For all further details of the parties’ submissions, reference is made to the written submissions of both parties with attachments. The court took evidence in accordance with the evidentiary rulings of May 6 and July 8, 2009 and November 18, 2009 by hearing the witnesses *** and *** and by obtaining a written expert opinion. With regard to the results of the taking of evidence, reference is made to the minutes of the hearings of 24.6.2009 and 13.1.2010 as well as to the expert opinion of the expert Dr. med. dent. *** of 17.9.2009.
Reasons for the decision
The complaint is well-founded.
1. according to the result of the taking of evidence, the plaintiff is entitled to the asserted claim for damages for pain and suffering (§§ 280 and 823 BGB in conjunction with § 253 para. 2 BGB).
a) As the expert has convincingly and uncontradicted by the defendant explained, the defendant is in any case to be blamed for treatment errors in that it only prepared and filled two canals during the root canal treatment of tooth 27 and overlooked the two remaining root canals. These were not visible on the x-rays taken by the defendant. However, with a statistical frequency of 85 % for the presence of three canals and a further approx. 15 % for four canals – i.e. together approx. 100 % – in the upper second molars (17 and 27), the existence of at least one additional root canal could be assumed almost with certainty. It is scientifically undisputed that incomplete preparation and canal filling alone represent a significantly increased risk of treatment failure. This is all the more true if entire canals remain untreated, as the probability of periapical spread increases disproportionately with the amount of residual bacteria remaining. The defendant should therefore have used further imaging procedures or referred the plaintiff to a specialized colleague. The extent to which the defendant could also be accused of not having prepared and filled the two treated canals up to the apex may be left open.
b) The fact that the plaintiff, despite the root canal treatment of the defendant, later suffered from a
inflammation of the dental pulp (pulpitis) and constant pain in tooth 27, is to be
The court is convinced above all by the credible testimony of the witness ***
proven. The witness gave a detailed and plausible account of the core events, including the
In agreement with the statement of claim, she described that her husband, after the
root canal treatment complained all the time about the electrifying pain in the treated tooth, especially when chewing. People talk about this all the time in normal life. The pain was sometimes stronger and sometimes weaker, but always present. Despite the absence of pathological x-ray findings, the expert also did not consider the complaints to be implausible. The statements of the dental assistants *** and ***, who denied such complaints, are not contradictory, insofar as they can be followed against the background that it was a routine case dating back two to three years at the time of the interrogation and the witnesses were not present at every treatment. Moreover, even the witness *** testified that the plaintiff had complained of discomfort in the region of teeth 27/26, which was, however, attributed to a gum infection. However, according to the also unchallenged findings of the expert, pulp pain can radiate, so that the pain can no longer be localized in a specific tooth or jaw section.
c) A causal connection between the treatment error and the plaintiff’s toothache must be assumed because the defendant’s root canal treatment is no longer comprehensible from an objective medical point of view and is therefore grossly incorrect. The expert also gave convincing reasons for this; the defendant did not contradict this. In such a case, the burden of proof is reversed in favor of the patient if the treatment error – as here – is capable of causing the type of damage to health that actually occurred (see only BGH NJW 2008, 1304 with further references). The defendant did not provide the evidence of a lack of causal connection that was incumbent upon it. The expert was unable to make sufficient findings on this issue. The defendant did not offer any other evidence.
d) In view of the pain suffered by the plaintiff for well over a year and the defendant’s gross breach of duty, the minimum compensation demanded of € 1,000 appears appropriate and sufficient.
2. the claim for interest is based on § 291 BGB. In addition, the plaintiff as
compensation also reimbursement of his pre-trial legal fees in the amount of
155.30 € demand.
3. the procedural ancillary rulings are based on sections 91, 708 no. 11 and 711
ZPO.
Value in dispute: € 1,000
***