Reference number: 5 U 115/14
Announced on: May 27, 2015
HIGHER REGIONAL COURT OF COLOGNE
IN THE NAME OF THE PEOPLE
JUDGMENT
In the legal dispute
of Mrs. ***
Plaintiff, appellant and cross-appellee,
Attorney of record: Attorney Brandl, Neusser Str. 182, 50733 Cologne
vs.
Dr.***
Defendant, appellee and cross-appellant,
Attorneys of record: Rechtsanwälte ***
the 5th Civil Senate of the Higher Regional Court of Cologne at the hearing on April 15, 2015
by the presiding judge at the Higher Regional Court Dr. ***. the judge at the Higher Regional Court *** and the judge at the Higher Regional Court ***
found to be right:
On the plaintiff’s appeal, the judgment of the 9th Civil Chamber of the Regional Court of Bonn – 9 0 481/12 – handed down on May 30, 2014 is partially amended, rejecting the further appeal, and restated as follows:
The defendant is ordered to pay the plaintiff EUR 4,624.58 plus interest in the amount of five percentage points above the respective base interest rate since September 19, 2012.
The defendant is ordered to pay the plaintiff pre-trial legal fees in the amount of EUR 489.45.
It is established that the defendant is obliged to compensate the plaintiff for all further material and unforeseeable non-material damages resulting from the incorrect treatment in the period from June 21, 2011 to March 13, 2012, insofar as the claims have not been or will not be transferred to social insurance carriers or other third parties.
In all other respects, the action is dismissed.
Orders the plaintiff to pay 38% of the costs of the proceedings at first instance and the defendant to pay 62%. Orders the plaintiff to pay 53% of the costs of the appeal proceedings and the defendant to pay 47%.
The judgment is provisionally enforceable.
The appeal is not permitted.
Reasons:
In accordance with Section 540 (2) ZPO in conjunction with Section 313 a (1) sentence 1 ZPO, the presentation of the factual findings is waived.
The plaintiff’s appeal is admissible. On the merits, it is only partially successful to the extent shown in the operative part; otherwise, it is unfounded.
Like the Regional Court, the Senate follows the expert opinion of the court expert Dr. *** [written expert opinion of October 4, 2013 (BI. 98 – 107 d. A.) together with oral explanations on May 7, 2014 (p. 2 – 5 of the minutes of the first-instance hearing and taking of evidence on May 7, 2014. BI. 187 et seq, 188 – 191 d AA and, following the result of the taking of evidence in the first instance, is based on the reasons set out in detail in the oral hearing on April 15, 2015, as well as on the correct reasons on p. 4/5 of the contested decision, which do not require any further additions. 4/5 of the contested decision, that treatment errors cannot be established with regard to the disputed treatment of tooth 35, but that the defendant committed gross treatment errors in the disputed treatment of tooth 32, which led to increased bone resorption in the area of tooth roots 31 and 32 and to the loss of teeth 31 and 32.
To compensate for the non-material damage suffered by the plaintiff as a result of the defendant’s gross treatment errors, the Senate considers compensation for pain and suffering in the amount of EUR 2,000 to be appropriate for the reasons set out in detail at the hearing on April 15, 2015. On the one hand, when calculating the compensation for pain and suffering, the loss of the healthy tooth 31, which according to the convincingly substantiated findings of the court expert Dr. *** is attributable to the treatment errors of the defendant, must also be taken into account in addition to the loss of the significantly damaged tooth 32. Secondly, when calculating the compensation for pain and suffering, account must be taken of the fact that the defendant’s gross treatment errors caused a significant increase in bone loss in the area between the roots of teeth 31 and 32. In addition, there has been a slight increase in the CMD complaints, from which the plaintiff had already suffered to a considerable extent before the disputed treatment. Taking into account in particular the aforementioned circumstances, the Senate considers an amount of EUR 2,000 to be appropriate compensation for the non-material damage suffered by the plaintiff as a result of the defendant’s gross treatment errors.
In the context of compensation for material damage, the plaintiff can demand reimbursement from the defendant for the costs of those post-treatment measures that adequately remedy the damage suffered by the plaintiff as a result of the defendant’s gross treatment errors. Contrary to the defendant’s apparent perception, the treatment actually carried out on the plaintiff with regard to teeth 31 and 32 is necessary in the present case to adequately remedy the damage in this sense. In making this assessment, the Senate is well aware that the court expert came to the conclusion that two treatment alternatives were available to the plaintiff despite the disputed treatment with the gross treatment errors he found in this respect and despite the consequences caused by these errors and in this respect in particular despite the extraction of teeth 31 and 32 which became necessary due to the errors, namely the implant restoration, which the plaintiff actually had carried out, and the telescopic bridge restoration, which the defendant had planned for the plaintiff according to his [indisputably unsigned] treatment and cost plan. In this respect, however, it must be taken into account on the one hand that the expert pointed out that, despite the extraction of teeth 31 and 32, the telescopic bridge restoration was an appropriate and adequate restoration option for the plaintiff and at the same time one of the best solutions, but that an implant restoration as a fixed restoration was always the best, albeit most expensive, solution, even in the case of the plaintiff. And secondly, it must be taken into account that the plaintiff has suffered significantly increased bone loss in the anterior region as a result of the defendant’s gross treatment errors, and that this bone loss in the anterior region has led to visual impairments which the plaintiff as the injured party does not have to accept. In view of this, in the present case of damage, adequate elimination of the damage is not limited to the implementation of the most favorable of the two medically justifiable treatment options. Rather, the plaintiff is entitled to reimbursement of the costs for the treatment that is also most likely to take into account the aforementioned visual impairments and thus leads to an adequate elimination of the damage overall. And this is more likely to be guaranteed with implant treatment with preliminary bone augmentation than with telescopic bridge treatment.
In view of the above, an estimate in accordance with Section 287 ZPO, taking into account the invoices of the post-treatment dentist Dr. Dr. *** [Annex K 3. K4 and K 5 (BI. 21 – 27 of the file], results in reimbursable post-treatment costs in the amount of EUR 2,324.58, which are calculated as follows: The invoice dated February 27, 2012 submitted as Exhibit K 3 [Exhibit 21 of the file] is not taken into account because it relates to measures in relation to teeth 14 and 16. The invoice dated April 23, 2012 submitted as Exhibit K 4 [in conjunction with the in-house laboratory and material receipt dated April 18, 2012. 22/23 i. V. m. 24 d. A.], half of the costs are to be taken into account by way of an estimate in accordance with Section 287 ZPO because the items billed in this invoice relate to teeth 32 and 35 and only the measures relating to tooth 32 are reimbursable; this invoice therefore results in an amount to be reimbursed of [323 .75 Euro] 161.88 euros. From the invoice of September 21, 2012 submitted as Annex K 5 [i. in conjunction with the in-house laboratory and material receipt dated September 20, 2012; BI. 25/26 i. V m. 27 d. Since the invoice mainly relates to teeth 31 and 32, the costs invoiced therein are largely to be reimbursed; only the two items amounting to EUR 161.96 and EUR 12.22 euros, which relate to teeth 34 and 36, and part of the laboratory costs of 887.47 euros included in the invoice, because these relate not only to the implants in regions 31 and 32, but to a total of three implants; the Senate estimates the reimbursable share of these costs at two thirds, so that an amount of [887.47 euros : 3 =-] 295.82 euros is to be deducted in this respect. This results in an amount to be reimbursed from the invoice dated September 21, 2012 of [2 .632,69 Euro – 161.96 Euro – 12.22 Euro – 295.82 euro=””] 2,162.70 euros. The total post-treatment costs to be reimbursed are [161 .88 Euro + 2.162,70 euro=””] EUR 2,324.58.
For the reasons set out in the oral hearing on April 15, 2015, the plaintiff can also demand payment of compensation from the defendant for the costs of EUR 300 that she incurred for the private expert opinion of the dentist Dr. ***. This is because, despite the fact that Dr. *** also acted as an aftercare provider, the expert opinion provided by him is a standard party opinion in dental liability disputes and the costs incurred are to be regarded as reasonable costs of legal proceedings.
On the basis of the justified value in dispute of up to 5,000 euros, the recoverable pre-litigation legal costs amount to [fee for a value in dispute of up to 5,000 euros according to the law applicable at the time: 301 euros: 301 euros x 1.3 = 391.30 euros + 20 euros = 411.30 euros + 78.15 euros (19% VAT) =] 489.45 euros.
The claim for interest awarded is based on Sections 280, 286, 288 BGB.
The decision on costs is based on Section 92 (1), Section 91 (1), Section 97 (1) and Section 516 (3) ZPO, whereby the fact that the defendant withdrew his cross-appeal before the hearing date after the Senate pointed out its inadmissibility had to be taken into account when determining the proportion of costs for the appeal proceedings.
The decision on provisional enforceability is based on Section 708 No. 10, Section 711 ZPO.
The appeal was not permitted because the requirements of Section 543 (2) ZPO are not met. The questions relevant to the decision are those of the individual case.
The pleadings of the plaintiff dated May 5 and 8, 2015 and of the defendant dated May 6, 2015 [together with the annex attached to this pleading (statement of the defendant personally)] do not provide any reason to reopen the oral hearing.
The amount in dispute for the appeal proceedings is set as follows:
– until November 11, 2014: EUR 8.477.73 euros:
Of this amount, the plaintiff’s appeal is entitled to 6,877.73 euros (4,250.00 euros application no. 1 for damages for pain and suffering, insofar as not awarded by the Regional Court 5,000 euros – 750 euros (lawyer’s fees not included in application no. 1) + 2,627.73 euros application no. 2; material damage, insofar as not awarded by the Regional Court 3,418.66 euros – 490.93 euros – 300 euros 6,877.73 euros) and the defendant’s cross-appeal is entitled to 1,600 euros.
Completed
Dr. ***