Ref.: 133 C 92/01
announced on June 8, 2001
In the name of the people
Verdict
In the legal dispute
des ****************************************,
Plaintiff
Representative: Attorney Brandl, Neusser Str. 182, 50733 Cologne, K 1100
vs.
********************************************,
Defendant,
Authorized representative: ************************,
the Local Court of Cologne, Dept. 133
at the hearing on May 11, 2001
by the judge at the local court ***
recognized as right:
The defendant is ordered to pay the plaintiff DM 5,257.5 plus 4% interest since March 27, 2001.
The remainder of the action is dismissed.
The plaintiff shall bear 30% of the costs of the legal dispute and the defendant 70%.
The judgment is provisionally enforceable, but for the plaintiff only against the provision of security of DM 7,000.
Facts of the case
The plaintiff had his teeth 26, 27 and 48 crowned by the defendant in 1995 and his teeth 28, 37 and 45 crowned in 1996, for which treatments he had to pay DM 747.28 and DM 702.38 respectively.
When he again sought treatment from the defendant in the spring of 1998, partly because of complaints about tooth 45, the defendant extracted tooth 45.
The plaintiff claims that this extraction was not in accordance with the art of dentistry. The same applies to the crowns, all of which had marginal defects and had to be replaced.
In the action, the plaintiff, who was reimbursed by the defendant for the co-payments made to it, seeks reimbursement of the costs of an implant for tooth 45, which could not be replaced by a bridge, in the amount of DM 5,257.51, as well as further co-payments for crowns in the amount of DM 1,820.49 and for plastic fillings in the amount of DM 470.52.
He requested,
order the defendant to pay him DM 7,548.52 plus 4% interest since service of process (27. 3. 01).
The defendant requests,
dismiss the action.
She refers to the fact that the plaintiff refused an apicoectomy on tooth 45 and claims that such treatment could have saved the tooth, and furthermore believes that the plaintiff could at best demand compensation within the framework of health insurance benefits, which do not include implants or plastic fillings.
With regard to the other facts of the case and the state of the dispute, reference is made to the contents of the file and the contents of file 133 H 6/99 AG Köln, which were the subject of the oral hearing.
Reasons for the decision
The action is well-founded to the extent granted, but otherwise unfounded.
The plaintiff can demand payment of DM 5,257.51 from the defendant, namely reimbursement of the undisputed costs incurred for an implant, as damages for positive breach of the treatment contract concluded between the parties.
As is clear from the expert opinion of Dr. *** obtained in the independent evidence proceedings and is no longer disputed by the defendant, the defendant did not treat the plaintiff’s tooth 45 endodontically before crowning, as would have been appropriate, which omission subsequently led to the tooth having to be extracted.
In contrast, the fact that the plaintiff refused an apicoectomy is irrelevant. The success of this treatment measure is by no means certain and is only described by the expert as “perhaps possible”.
If the defendant is therefore at fault for the loss of the tooth, the plaintiff is entitled under § 249 BGB to the restoration of a condition as close as possible to the original, which in the present case can indisputably be achieved by an implant. The extent to which this claim is modified by the fact that the plaintiff visited the defendant as a patient with health insurance is not apparent and cannot be inferred from the decision of the Higher Regional Court of Düsseldorf in NJW 92, 2365 cited by the defendant.
On the other hand, the plaintiff cannot demand compensation for the further own contribution amounts claimed.
As far as the personal contribution for resin fillings is concerned, the plaintiff, contrary to his submission in the pleading of 4. 5. 2001 to the defendant, but wants to argue that he had to spend it on the renewal of the defendant’s work. However, he has not verifiably explained the reason for this, just as it is difficult to understand why the personal contributions to be borne by him for the new treatment are higher than those originally paid to the defendant. However, the plaintiff has indisputably been reimbursed for these, to what extent the costs incurred in the future are therefore to be regarded as “anyway” costs.
The interest claimed is justified on the basis of §§ 284, 288 BGB. The ancillary rulings are based on sections 92, 708 no. 11, 709 ZPO.
(****, RAG)