File number: 3 O 16/14
Announced on 11.10.2016
Cologne Regional Court
IN THE NAME OF THE PEOPLE
Judgment
In the legal dispute
of *** GmbH, represented by Gf.***,
plaintiff,
of Dr. ***,
third-party defendant.
Representative: Attorney ***,
vs.
Ms *** Defendant,
Attorney at law: Bernd Brandt, Neusser Straße 182, 50733 Cologne
the 3rd Civil Chamber of the Regional Court of Cologne
on the basis of an oral hearing on July 5, 2016
by the presiding judge at the Regional Court ***, the judge *** and the judge at the Regional Court ***
found to be right:
The action is dismissed.
In response to the third-party action, the third-party defendant is ordered to pay the
defendant damages for pain and suffering in the amount of € 4,000.00 plus interest in the amount of 5 percentage points above the base interest rate since February 29, 2013 as well as
costs of pre-trial legal proceedings in the amount of € 564.65.
It is established that the third-party defendant is obliged to compensate the defendant for all material and future unforeseen immaterial damages that are attributable to the incorrect treatment from December 23, 2011 to June 13, 2012, insofar as claims have not been or will not be transferred to social insurance carriers or other third parties.
The further third-party action is dismissed.
The plaintiff shall bear 26% of the court costs and the extrajudicial costs of the defendant, the defendant 21% and the third-party defendant 53%. The defendant shall bear 29% of the extrajudicial costs of the third-party defendant. There will be no other reimbursement of costs.
The judgment is provisionally enforceable, but for the defendant only against provision of security amounting to 110% of the amount to be enforced in each case. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable on the basis of the judgment, unless the third-party defendant provides security in the amount of 110% of the amount to be enforced in each case prior to enforcement.
Facts:
The subject of the action is a fee claim from assigned rights; the subject of the third-party action is claims for allegedly faulty dental treatment.
The defendant, who was born on March 7, 1957, underwent dental treatment with the third-party defendant from December 23, 2011 to June 13, 2012. The third defendant performed a cystectomy on the defendant in regions 18 and 28 on March 29, 2012. This was followed by a sinus lift and augmentation of the alveolar process in the maxilla on the right on April 26, 2012. After the operation, the defendant suffered from severe pain: the operated side of her face was blue and very swollen.
On April 2, 2012, the plaintiff issued an invoice for the procedure performed on March 29, 2012 (cystectomy) in the amount of EUR 1,330.74 (Exhibit B1. BI. 64 f of the file). The defendant paid this invoice – as it claims – by mistake.
On May 7, 2012, the plaintiff issued an invoice for the services of the third-party defendant in the period from April 2, 2012 to May 3, 2012 (sinus lift and reconstruction of the alveolar ridge) in the amount of EUR 3,717.21 (Exhibit K1, BI. 28 et seq. of the file). In a letter dated August 31, 2012 (Exhibit K10, BI. 108 of the file), the plaintiff canceled this invoice in the amount of EUR 1,077.98. The defendant paid a partial amount of EUR 804.54 on 3.7.2012, so that a residual amount in the amount of the claim remained outstanding.
In addition to the principal claim, the plaintiff claims € 6.50 in expenses for a reminder letter dated 19.09.2012 (Annex K4, BI. 33 of the file) and a further € 192.90 in pre-litigation legal fees.
The plaintiff requested that
order the defendant to pay the plaintiff EUR 1,834.69 plus default interest in the amount of 5 percentage points above the applicable base interest rate from July 10, 2012 and a further EUR 199.40 plus default interest in the amount of 5 percentage points above the applicable base interest rate from EUR 192.90 from January 3, 2013.
The defendant requested that
the action be dismissed.
The defendant accuses the third-party defendant of malpractice.
With regard to the cystectomy in regions 18 and 28, the defendant claims that there were no cysts requiring treatment. This is also apparent from the fact that the third-party defendant did not order a histological examination. In the absence of a medical indication for the procedure, the third-party defendant and the plaintiff are not entitled to a fee for this service. In the alternative, the defendant declares a set-off against the claim with the alleged reimbursement claim in the amount of EUR 1,330.74.
With regard to the sinus lift, the defendant claims that the third-party defendant did not inform her about the far-reaching surgical procedure and its risks. If she had been properly informed, she would not have had the procedure performed, or at least not by the third-party defendant, but at best as part of an inpatient stay. During the procedure on April 26, 2012, she suffered a circulatory collapse. After the procedure, she had dizzy spells. Pieces of membrane had come loose, which indicated a treatment error. To this day, she suffers from pain that extends to the right side of her nose, as well as discomfort. There is a pronounced scar in the area of the bone augmentation. The attempted bone augmentation was unsuccessful. Furthermore, the third defendant had improperly ground the bridge in the upper right jaw, so that the bridge had become unusable after the augmentation had disappeared.
The plaintiff considers compensation for pain and suffering of € 5,000 to be appropriate on account of the impairments suffered
Finally, the defendant accuses the third-party defendant of billing errors. With regard to the details, reference is made to BI. 59 et seq. of the file.
The defendant counterclaims.
1. order the third-party defendant to pay the defendant reasonable damages for pain and suffering, but at least EUR 5,000. plus 5% interest above the prime rate since February 29, 2013. as well as costs of pre-trial legal proceedings in the amount of EUR 1,019.83:
2. declare that the third-party defendant is obliged to compensate the defendant for all material and future non-material damage that is attributable to the incorrect treatment from December 23, 2011 to June 13, 2012, unless claims have been or will be transferred to social insurance carriers or other third parties.
The third-party defendant requests that
the third-party action be dismissed.
The plaintiff and the third-party defendant claim that the treatment was performed lege artis. Pain, swelling and a blue discoloration of the operated side of the face are completely normal in the context of such a significant surgical procedure as a sinus lift. The defendant had also been sufficiently informed. An initial discussion about the sinus lift had already been held on January 17, 2012. On January 30, February 8 and February 14, 2012, the defendant was also treated by Dr. ***, who was an ear, nose and throat specialist, but who also spoke with the defendant about the planned procedure. Further informative discussions had taken place on 29.03.2012 and 2.4.2012. Furthermore, the third-party defendant provided the defendant with written information regarding the cystectomy and the sinus lift at an early stage (Exhibits K6 – K8, Bi. 101 et seq. of the file). Reference is made to the exchanged pleadings and attachments for further details of the facts of the case and the dispute. The court took evidence in accordance with the order to take evidence dated 15.09.2014 (BI. 156 et seq. of the file) by obtaining a written expert opinion. With regard to the result of the taking of evidence, reference is made to the written expert opinion of the expert Dr. *** dated 08.12.2014 (BI. 172 et seq. of the file) and the minutes of the hearing dated 05.07.2016.
Reasons for the decision:
The admissible action is unfounded, the admissible third-party action is largely well-founded.
The plaintiff is no longer entitled to a fee claim against the defendant based on assigned rights. From the disputed invoice of May 7, 2012 (Exhibit K1, BI. 28 et seq. of the file), the plaintiff, after partial cancellation of the invoice amount of € 1,077.98 (whereby a reduction amount of € 335.55 is attributable to the GOZ item 9100 and the remaining reduction amount of € 742.43 to the defendant according to the undisputed plaintiff’s submission in the pleading of March 26, 2014), is no longer entitled to a fee.03.2014 to the
GOZ item 9100 and the remaining reduction amount of € 742.43 was therefore attributable to the GOA items 2697a and 2698a) and partial payment by the defendant of € 804.54 still claimed € 1,834.69. Further invoice items are to be deleted from this invoice, as these were not medically indicated. The Chamber is convinced of this following the result of the taking of evidence.
The court expert Dr. *** explained in detail and convincingly that the build-up of the alveolar process in regions 15 and 16 carried out by the third-party defendant was not necessary because there was sufficient natural bone at this point – before the treatment by the third-party defendant – for the insertion of an implant. The expert came to this conclusion after evaluating the x-ray taken by the third-party defendant on December 23, 2011, which showed that there was a sufficient amount of alveolar bone in this region to accommodate the dental implants. Even a CBCT X-ray taken by the post-treatment specialist Dr. *** on November 18, 2014, shortly before the expert’s examination of the defendant, showed that there was still 13 mm remaining in the area of tooth 15, although the bone augmentation failed and the bone height was decimated by the third-party defendant. This also proves that the attempt to raise the vertical bone in this region had no medical reason.
The invoice items relating to this treatment measure must therefore be deleted from the invoice in dispute. According to the written expert opinion and the
oral explanation by the
expert, this concerns the following items:
GOZ 9100: 176.77
GOA 2442: 120.66
GOÄ 2675: 113.94
GOA 2697a and 2698a: 69.31
Consumables (Sonic foil, Sonic pins, Sonic pre-drill): € 705.13
This results in a total reduction of € 1,185.81, leaving a justified fee claim of € 648.88 from the invoice in dispute.
Insofar as the defendant has alleged further billing errors in its statement of defence, these have not been confirmed by the expert.
However, the outstanding fee claim has been extinguished by the defendant’s alternatively declared set-off with a repayment claim in the amount of € 1,330.74. The repayment claim follows from § 812 para. 1 sentence 1, 1st alt. BGB, as the defendant settled the plaintiff’s invoice of 02.04.2012 for the intervention carried out on 29.03.2012 in the amount of € 1,330.47, although a corresponding fee claim of the third-party defendant had not arisen. The procedure on which this invoice was based lacked any medical indication. This was also established to the satisfaction of the court following the results of the taking of evidence. In his expert opinion of December 8, 2014, the expert stated that neither the x-ray, which shows the condition before the treatment by the third-party defendant, nor the further documentation of the third-party defendant gave any indication of the suspicion of the presence of dentogenic cysts in the treated regions 18 and 28. He confirmed this finding during the oral explanation of his expert opinion. In response to the third defendant’s claim that he had not actually performed a cystectomy but had “removed foci” and could only bill this as a cystectomy, the expert confirmed, after reviewing the preoperative imaging, that there was no evidence of such foci.
The Chamber was able to base its decision unreservedly on the expert findings set out above. In doing so, it first took into account that the professional competence of the expert Dr. *** cannot be called into question from any point of view.
Contrary to the opinion of the plaintiff and the third-party defendant, such doubts do not arise in particular from the fact that the expert Dr. *** is not a publicly appointed and sworn expert in the field of dentistry. The plaintiff and the third-party defendant are also wrong in assuming that the court is obliged under Section 404 (2) ZPO to appoint a publicly appointed expert; this provision is a purely regulatory provision and does not bind the court (Greger in Zöller. ZPO. 31st ed. 2016, Section 404 para. 2). The same does not follow from the cited decision of the Federal Court of Justice of 13.07.2016 (Ref. XII ZB 46/15, juris). According to this decision, it is sufficient for the court to determine that a medical expert is suitable if the expert is a doctor with experience in the relevant field.
The expert Dr. *** not only draws his expertise from his many years of experience as a dentist, but is also an extensively experienced court expert who is known to the Chamber from a total of 79 proceedings. The expert was able to substantiate his findings in a comprehensible and convincing manner. He has consistently identified the basis of his findings, in particular the complete medical treatment records he inspected and the results of imaging procedures, and has clarified in detail the reasons why the existing connecting facts led to the results found. Accordingly, there are no recognizable deficiencies in the assessment under any aspect, so that the Chamber fully agrees with the expert’s statements.
The findings of the court expert, according to which there were no cysts or foci requiring treatment in regions 18 and 28, are not called into question by the opinion of Prof. Prof. Dr. med. dent. *** submitted by the plaintiff and third-party defendant. On the occasion of the oral discussion of the expert opinion, Dr. *** also looked at the preoperative X-ray image again in digital form and stated comprehensibly that he could recognize a bone density of 3 to 4 each. He also pointed out that the Medical Service of the health insurance funds had not identified any foci requiring treatment. In contrast, the statements of the private expert Prof. Dr. *** are already contradictory, as he states on the one hand that the residual ostitis from which the defendant suffered were “transformations of hard bone tissue into connective soft tissue” and not a cyst, which usually grows ball-shaped into the surrounding bone and is sealed against the bone with a membrane, but on the other hand wants to see a cavity distally on the X-ray image of tooth 18. At the same time, he concedes that it is absolutely impossible for a dentist with a conventional medical orientation – such as the court expert – to see such a cavity on an X-ray.
However, against the background of a diagnosis that was not clear from a conventional medical point of view, the third-party defendant should have carried out further diagnostics using modern imaging procedures or arranged for a pathohistological examination, in particular to rule out the possibility that it was typical age-related changes in the bone (OLG Zweibrücken. Judgment of December 2, 2003, Ref. 5 U 23/02, para. 29 et seq, juris). This would only be judged differently if the defendant had expressly agreed that her treatment and examination should not be carried out according to the rules of conventional medicine, but according to a “holistic”, i.e. naturopathic (outsider) method. However, at no time did the defendant claim that this was the case.
Against this background, there is no need to obtain an expert opinion as requested by the plaintiff and third-party defendant in the statement of 14 September 2016 or to obtain a supplementary opinion from the court expert Dr. ***. Pursuant to Section 412 (1) ZPO, the court can order a new expert opinion by the same or another expert if it considers the expert opinion to be insufficient. Obtaining a further expert opinion is generally at the discretion of the court and is only required in exceptional cases. For example, the court may and must order a new expert opinion if it is not convinced by the expert opinion despite supplementing it or hearing the expert, e.g. if particularly difficult issues need to be resolved or gross deficiencies in the existing expert opinion, such as incompleteness, cannot be rectified or if the expertise of the previous expert is doubtful (OLG Munich, judgment of 17.5.2013, ref. 25 U 2548/12, para. 24, juris). None of this is the case here. Rather, the expert opinion provides a sufficient and convincing basis for a decision in accordance with the above.
In the absence of a main claim, the plaintiff cannot demand reimbursement of pre-litigation legal fees or reminder costs.
The third-party action was justified to the extent stated.
The defendant is entitled to a claim against the third-party defendant for payment of reasonable compensation for pain and suffering in the amount of € 4,000.00 as well as for determination of the further material and immaterial obligation to pay compensation under Sections 280 (1), 249, 253 (2) BGB in conjunction with the treatment contract and under Section 823 BGB.
The severity of the health injuries, the suffering caused by them, their duration, the extent of the perception of the impairment by the injured party and the degree of fault of the injuring party are decisive for the assessment of the fair compensation in money to be granted according to § 253 BGB (BGHZ 138. 388, 391). All these circumstances must be included in an overall assessment and placed in an appropriate relationship to the compensation (BGH VersR 1988, 943; VersR 1991, 350, 351; BGHZ 138, 388. 391:). The compensation for pain and suffering should primarily represent compensation for the impairments suffered.
According to the above, it is initially clear that the defendant underwent an unnecessary surgical measure on March 29, 2012 because it was not medically necessary and also – as the expert Dr. *** continued in his written opinion – very invasive and had to accept corresponding impairments in the healing phase. With regard to the endodontic treatment of tooth 18 that subsequently became necessary, however, Dr. *** made it clear during the oral explanation that this was not due to the destructive treatment by the third-party defendant, but with well over 90% probability to the underlying disease. In this regard, the expert clearly explained that it was already apparent on the x-ray of 26.04.2012 that this tooth showed severe destruction due to the underlying disease.
Furthermore, according to the above, it is established that the attempt to build up the alveolar process in regions 15 and 16 was not medically indicated. that the defendant therefore underwent a far greater surgical intervention than would have been the case with the sinus lift alone – which the expert considered medically necessary. According to the expert, with whom the Chamber also agrees in this respect, the compact lamella was milled away over a large area and bone substance was severely decimated, which means that the rehabilitation now required will be much more difficult. Furthermore, the defendant still suffers from scarring on the right side of her jaw and the resulting pain on the right side of her face.
Insofar as the defendant also claimed that she suffered severe pain immediately after the second operation because the third-party defendant had failed to close the wound created during the augmentation of the alveolar process with a membrane, this could not be taken into account to increase the compensation for pain. According to the results of the taking of evidence, the court is not convinced that the third-party defendant failed to close the wound without tension by inserting a Bio-Gide membrane. The expert stated that the documentation of the University Hospital of Cologne, according to which material had come out of the wound, did not necessarily indicate that the wound had actually not been closed without tension. Although the third-party defendant did not bill for this membrane, the surgical protocol of April 26, 2012 (BI. 48 f. of the BU booklet) shows the use of a BioGide membrane. Accordingly, the healing disorders are not attributable to a treatment error by the defendant, but are to be regarded as fateful.
With regard to the sinus lift, the Chamber is unable to recognize a breach of the duty of disclosure by the third-party defendant with the consequence that the defendant did not effectively consent to this intervention and that she would now also have to be compensated for the associated impairments. According to the expert, the inflammation of the maxillary sinus, which occurred in the defendant’s case, may have been a risk of the sinus lift that required clarification. In any case, however, the defendant failed to demonstrate a conflict of decision. At her personal hearing, she stated that if she had been informed about the risk of inflammation, she would not have known what she would have done. The defendant’s further admission that she would have asked another doctor or consulted a specialist is also not sufficient to demonstrate a plausible conflict of decision (Martis/VVinkhart, Arzthaftungsrecht, 4th ed. 2014, para. A 1909a).
There was no further obligation to provide information with regard to the question of whether an internal or external sinus lift should be performed. This is because the doctor does not have to provide information about different surgical techniques or access options to the surgical site that are essentially equivalent in terms of opportunities and risks (Martisi-Winkhart loc. cit., para. A 1224, with numerous further references). However, the fact that the internal sinus lift would have been the safer way in the present treatment case, i.e. that there would have been no equivalence between the surgical techniques, did not result from the expert’s statements.
Finally, the defendant’s alleged CMD symptoms were also not to be taken into account further in terms of pain compensation. In this respect, the court expert stated that there were no recognizable signs of a destructive CMD disorder at the time of the expert findings.
The claim for interest with regard to the amount of compensation for pain and suffering follows from §§ 280 para. 1, para. 2, 286 para. 1, 288 para. 1 BGB. The third-party defendant was requested to pay compensation for pain and suffering in a letter from the defendant’s representative dated 15.02.2013, setting a deadline of 28.02.2013.
Furthermore, the defendant is entitled to a declaration of the defendant’s further material and immaterial obligation to pay compensation for the consequences of the incorrect treatment. This applies in particular with regard to tooth 14, which, according to the detailed and convincing statements of the expert, was drilled into by the third-party defendant during the sinus lift with a probability of 99% and thus permanently damaged. Although the damage is not currently acute, the need for endodontic treatment of this tooth is probable.
The fact that the damage to this tooth was caused by the third-party defendant was demonstrated by the expert in a comprehensible manner in every respect on the basis of a comparison of the preoperative x-ray on the one hand and two postoperative x-rays on the other. The third party defendant’s objection that the expert had not examined all the treatment records of the post-operative practitioners and that it was therefore possible that the drilling of tooth 14 was carried out by a different practitioner does not hold water. Rather, the expert had the treatment documentation of 15 other practitioners, which the plaintiff’s and third-party defendant’s representative was able to convince himself of, as he inspected the files before the court file was sent to the expert (see pleading dated September 3, 2014. BI. 159 of the file). The assertion that the injury to a tooth adjacent to the operated area was inflicted by another doctor is therefore obviously made in the blue.
The defendant is entitled to reimbursement of pre-litigation legal costs against the third-party defendant from an object value of € 5,000.00 (€ 4,000.00 compensation for pain and suffering plus € 1,000.00 claim for a declaratory judgment). With a business fee of 1.5, this amounts to € 454.50. The flat rate for post and telecommunications pursuant to No. 7002 VV-RVG in the amount of € 20.00 and VAT (€ 90.15) had to be added, resulting in a total claim of € 564.65.
The procedural ancillary decisions follow from §§ 92 para. 1 sentence 1. 708 no. 11. 709, 711 ZPO (Baumbach’s cost formula).
Amount in dispute:
Action: € 2,483.35 (§ 45 para. 3 GKG)
Third-party action: € 7,000.00 (€ 5,000.00 + € 2,000.00)
Total: € 9,483.35