21 C 42/10
Announced on 05.08.2011
Judicial secretary
as clerk of the court registry
ON BEHALF OF THE PEOPLE
Verdict
In the legal dispute
the ***,
Plaintiff,
Attorney of record: Attorney ***
vs.
Mr. ***,
Defendant,
Attorney of record: Attorney Brandl, Gleueler Straße 227, 50935 Cologne
the Local Court of Brühl
to the oral hearing of 08.07.2011
by the judge ***
found to be right:
The action is dismissed.
Orders the plaintiff to pay 87% of the costs and the defendant to pay 13%.
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 plaintiff provides security in the amount of 110% of the amount to be enforced in each case prior to enforcement.
Facts of the case
The plaintiff is claiming dental treatment costs from the defendant on the basis of assigned rights.
The assignor operates a dental practice. The defendant commissioned the assignor with the provision of dental services, in particular with the fabrication of a total maxillary prosthesis and a mandibular telescopic prosthesis. The treatment was carried out by Dr. ***. As agreed, the prostheses were partly manufactured in Thailand.
The defendant was requested to settle the asserted fee claim in the amount of € 3,544.62 in a liquidation dated August 6, 2009 (Annex K2, p. 6 et seq. of the file).
In a letter dated August 26, 2009, the defendant complained to the plaintiff about the correctness of the dental prosthesis made, referring to various alleged defects, and demanded subsequent performance. For further details, reference is made to the letter dated 26.08.2009 (p. 16 of the file).
As no payment was made, the defendant was sent unsuccessful reminders in letters dated 24.09.2009 and 08.10.2009. In a letter dated 28.09.2009 (p. 17 of the annex), the defendant stated that he would only pay after proper performance.
The plaintiff claims that the dental services were provided in accordance with the rules of the medical art of healing. Insofar as the telescopic crowns in the lower jaw had to be replaced, this was due to poor oral hygiene on the part of the defendant.
The applicant claims that the Court should,
order the defendant to pay the plaintiff € 3,544.62 plus interest of 5 percentage points above the prime rate since October 12, 2009 and € 38.50 reminder costs.
The defendant claims,
dismiss the action.
The defendant is of the opinion that the dentures are defective. He claims that the dentures look almost non-existent and do not correspond to the wax impression. Furthermore, the dentures loosen when eating. In the alternative, the defendant declares a set-off with an alleged claim for damages for pain and suffering, the amount of which he leaves to the discretion of the court. In this regard, he claims that normal eating is no longer possible due to a restriction of chewing function as a result of the unusable dentures in the lower jaw.
The court took evidence in accordance with the orders to take evidence of 20.04.2010 (p. 28 of the file), 26.10.2010 (p. 92 of the file), 19.01.2011 (p. 121 of the file), 26.01.2011 (p. 126 of the file) and 28.03.2011 (p. 148 of the file) by obtaining an expert opinion from the expert Dr. Schorr. With regard to the results of the taking of evidence, reference is made to the written expert opinions of 02.09.2010 (p. 57 et seq. of the file), 06.12.2010 (p. 101 et seq. of the file) and 08.03.2011 (p. 136 et seq. of the file) as well as to the oral expert opinion in the minutes of the hearing of 08.07.2011. Reference is made to the exchanged written submissions and annexes for further details of the facts of the case and the dispute.
Reasons for the decision
The complaint is unfounded.
Although the claim in the amount of € 550.00 has arisen, it has been extinguished by the auxiliary set-off declared by the defendant in accordance with § 389 BGB.
The plaintiff was originally entitled to a fee of € 550.00 for the medical treatment of the upper jaw in accordance with Section 611 BGB. The additional fee claim asserted by the plaintiff for the medical treatment of the lower jaw does not exist due to the uselessness of the partial prosthesis. In this respect, the defendant is entitled to compensation for pain and suffering in the amount of € 550.00, with which he can bring the existing fee claim to an end.
In detail:
The plaintiff was originally entitled to a fee claim from assigned rights in the amount of € 550.00 for medical treatment in accordance with Section 611 BGB in conjunction with Section 398 BGB. § 398 BGB. There is no further claim to a fee.
The dental prosthetic treatment contract between the assignor and the defendant is to be qualified as a service contract, because dental services are generally services of a higher nature (BGH judgment of 09.12.2974 – Ref. VII ZR 182/73; OLG Zweibrücken judgment of 20.11.2001 – Ref. 5 U 20/01; KG Berlin decision of 01.07.2010 – Ref. 20 W 23/10; OLG Oldenburg judgment of 27.02.2008 – Ref. 5 U 22/07). A doctor regularly only promises the proper treatment of the patient, i.e. his medical activity, but not the desired success.
The plaintiff is only entitled to the fee to the extent that the assignor has provided appropriate treatment, i.e. treatment lege artis. The prevailing case law agrees that if the service is unusable for the patient due to poor performance for which the doctor is responsible, the patient is entitled to refuse payment of the fee to the extent of the unusability, despite differing dogmatic approaches (KG Berlin decision of 01.07.2010 – Ref. 20 W 23/10; OLG Oldenburg judgment of 27.2.2008 – Ref. 5 U 22/07; OLG Hamburg judgment of 25.11.2005 – Ref. 1 U 6/05; OLG Hamm judgment of 2.11.2005 – Ref. 3 U 290/04; OLG Zweibrücken judgment of 20.11.2001 – Ref. 5 U 20/01; OLG Cologne judgment of 26.5.1986 – Ref. 7 U 77/84, in each case with further references). Whether this result is to be justified in terms of legal construction in such a way that a set-off claim for damages is affirmed (OLG Munich judgment of 12.06.1997 – Ref. 1 U 1704/97), a justified “dolo petit” defense according to § 242 BGB is assumed, the patient is granted the (permanent) defense of non-fulfillment of the contract and the patient is not entitled to a claim for damages.
contract in accordance with § 320 BGB, a termination in accordance with § 628 para. 1
BGB (OLG Hamburg judgment of 25.11.2005 – Ref. 1 U 6/05) or a claim for damages based on indemnification (OLG Cologne judgment of 26.5.1986 – Ref. 7 U 77/84) may be left open. A claim for damages by the patient arising from a positive breach of contract can in any case be held against the dentist’s claim for remuneration without the need for a declaration of set-off (OLG Zweibrücken judgment of 20.11.2001 – Ref. 5 U 20/01; OLG Cologne judgment of 26.5.1986 – Ref. 7 U 77/84). The claim for compensation is primarily aimed at not having to pay remuneration for this service due to the established treatment deficiencies. (OLG Hamm judgment of 2.11.2005 – Ref. 3 U 290/04; OLG Zweibrücken judgment of 20.11.2001 – Ref. 5 U 20/01). The legal consequence of the exemption from the obligation to pay compensation arises directly from the content of the claim for damages.
The prerequisite for this is that the service is unusable. This can be assumed if it is not possible to remedy the defect and a new restoration must be made (KG Berlin decision of July 1, 2010 – case no. 20 W 23/10; OLG Oldenburg decision of February 27, 2008 – case no. 5 U 22/07). In this context, it is irrelevant whether the patient has not yet had the dentures replaced at the time of the lawsuit – for whatever reason (KG Berlin decision of 01.07.2010 – Ref. 20 W 23/10; OLG Oldenburg judgment of 27.2.2008 – Ref. 5 U 22/07). The only decisive factor is whether a new restoration is necessary for dental reasons (KG Berlin decision of 01.07.2010 – Ref. 20 W 23/10; OLG Oldenburg judgment of 27.2.2008 – Ref. 5 U 22/07).
It is no longer possible to clarify whether the service provided by the assignor with regard to the maxillary prosthesis was defective. The maxillary prosthesis broke and was unprofessionally re-glued after the breakage. It can therefore no longer be examined in its original condition. According to the statements of the expert Dr. ***, it is no longer possible to reconstruct what caused the fracture. Although the short life of the prosthesis is an indication of the poor quality of the prosthesis, improper handling could also have been the cause. On the one hand, it could be that the prosthesis did not fit properly and therefore broke; on the other hand, it could be that the prosthesis broke due to force. Against this background, it is irrelevant whether the maxillary prosthesis presented by the defendant for assessment is actually the one that was manufactured by the assignor, which the plaintiff doubts. In any event, the defendant was unable to prove that the assignor provided defective treatment with regard to the maxillary prosthesis. This is at his expense due to the distribution of the burden of proof.
The service provided by the assignor with regard to the partial prosthesis of the lower jaw is unusable. The court is convinced of this after taking evidence. According to the convincing findings of the expert Dr. ***, which the court agrees with, the telescopic crowns of teeth 33 and 43 in the lower jaw were not made lege artis. The expert clearly stated that the crown margins protrude and can be driven under with the probe. Furthermore, the veneer of crown 33 has flaked off. This does not comply with the rules of the medical art, especially since the two teeth on which the telescopic crowns sit were suitable as abutments. They were clinically firm and showed no signs of loosening. The expert rejected the plaintiff’s objection that the condition of the prosthesis was due to poor oral hygiene on the part of the defendant. According to his assessment, it is rather a matter of manufacturing defects that are not related to the defendant’s inadequate oral hygiene. Due to the existing defects, the telescopic crowns must be replaced. According to the expert’s clear statements, restoration is not possible. Therefore, replacement of the entire partial prosthesis of the lower jaw is indicated.
The court agrees with these statements. Accordingly, it is not possible to remedy the defect. Since the entire partial prosthesis of the lower jaw must be replaced, the partial prosthesis manufactured by the assignor is unusable within the meaning of the case law cited above.
In view of the above, the defendant is not obliged to pay the fee for the partial prosthesis of the lower jaw. He therefore originally only owed the fee for the maxillary prosthesis. On the basis of the liquidation of August 6, 2009 (Annex K2, p. 6 et seq.), the fee for the treatment of the upper jaw amounts to a total of € 550.00. The court is convinced of this after taking evidence. The expert Dr. *** has explained the composition of the costs in a comprehensible manner. Reference is made to the expert’s explanations recorded in the minutes of the hearing on July 8, 2011 (p. 157 of the file), which the court adopts as its own. The estimated € 550.00 includes both medical and laboratory costs. According to the expert’s findings, these costs are properly accounted for and reasonable. This also applies in view of the fact that the prosthesis was manufactured in Thailand as agreed.
The plaintiff’s original fee claim in the amount of € 550.00 expired due to the auxiliary set-off declared by the defendant in accordance with § 389 BGB.
In this respect, the defendant was entitled to an offsettable counterclaim in the form of a claim for compensation for pain and suffering pursuant to Sections 611, 280 BGB or Section 823 (1) BGB, which he can assert against the plaintiff pursuant to Section 406 BGB. The defendant has proven that the partial prosthesis of the lower jaw is unusable. The expert Dr. *** established that the dental prosthesis of the lower jaw manufactured by the assignor is not functional. This inevitably leads to restrictions in food intake, from which the defendant has been suffering for about 2 years now. The fact that the defendant initially postponed a new restoration due to the ongoing proceedings is understandable and cannot be to his disadvantage. The complaints suffered justify a claim for compensation for pain and suffering, which in any case amounts to € 550.00.
In the absence of a main claim, there is also no entitlement to the ancillary claims asserted.
The procedural ancillary rulings are based on sections 92 (1) sentence 1, 708 no. 11, 709, 711 ZPO.
Fee dispute value: € 4,094.62 (Section 45 (3) GKG)