Announced on 28 February 2017
File number: 3 O 243/15
Cologne Regional Court
IN THE NAME OF THE PEOPLE
Judgment
In the legal dispute
of Ms. *** Cologne,
plaintiff and counter-defendant,
Attorneys at law *** Cologne
against
Mr. *** Cologne
Defendant and counter-claimant,
Attorney at law: Bernd Brandl, Neusser Straße 182, 50733 Cologne,
the 3rd Civil Chamber of the Regional Court of Cologne
has ruled in favour of the plaintiff based on the oral hearing of 7 February 2017
by the presiding judge at the Regional Court ***, the judge at the Regional Court *** and the judge ***
:
The action is dismissed.
On the counterclaim, the plaintiff is ordered to pay the defendant an amount of € 7809.86 plus interest of 5 percentage points above the base interest rate from 23/09/2014 and a further amount of € 729.23.
The plaintiff shall bear the costs of the legal dispute.
The judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.
Facts:
In her action, the plaintiff is demanding repayment of the fixed allowance for a dental treatment as well as payment of compensation for pain and suffering and a declaration that the defendant is not entitled to any further fees. With the counterclaim, the defendant demands payment of his dental fee from the same treatment.
The 83-year-old plaintiff underwent dental treatment with the defendant in the period from 28.03.2014 to 14.08.2014. In accordance with the treatment and cost plan dated 11.04.2014, the defendant fabricated a prosthetic restoration in the upper and lower jaw.
After completion of the treatment, the plaintiff was invoiced for the treatment in the amount of € 10,285.48 with a payment deadline of 16.08.2014. After the health insurance company had paid the fixed subsidy of € 2475.62, an outstanding invoice amount of € 7809.86 remained. In a letter dated September 8, 2014, the plaintiff was sent a payment reminder with a deadline of September 22, 2014. In a letter from a lawyer dated 15.06.2015, the plaintiff was given a final deadline for payment until 26.6.2015 and further legal action was announced in the event that the deadline expired without result.
The plaintiff accuses the defendant of faulty treatment. The prosthetics were incorrectly fabricated by the defendant. When the left mandibular prosthesis saddle is loaded, the right saddle lifts, as the left saddle was not fitted correctly. On the right side of the jaw, there is a non-occlusion between the teeth in the upper and lower jaw. The retention of the maxillary prosthesis was inadequate. The anterior tooth contact was too pronounced and led to disclusion in the posterior region during excursion movements. The
The denture saddle in the upper jaw on the right is also too long. The veneering of the mandibular telescopic crowns on teeth 33 and 43 is too massive. In addition, the veneer on tooth 33 is too short. Tooth 22 is overloaded. The denture is not functional overall. The defendant needed a total of 20 sessions to produce the prosthetics, so that further corrective work could not be expected. Furthermore, normal chewing function on the right side was not given. Due to the impairment suffered, she considers compensation for pain and suffering of at least € 5200 to be appropriate.
The plaintiff originally applied for
1. order the defendant to pay her € 2538.13 plus interest at a rate of 5 percentage points above the prime rate from December 2, 2014,
2. order the defendant to pay her reasonable compensation for pain and suffering, at least € 5200 plus interest at a rate of 5 percentage points above the prime rate from December 2, 2014,
3. declare that the defendant has no claim for payment in the amount of € 7809.86,
4. order the defendant to pay the plaintiff a further € 1029.35 plus interest in the amount of 5 percentage points above the base interest rate since the pendency of the action.
In a letter dated 22/09/2015, the plaintiff declared the claim under 3) to be settled. The defendant joined the declaration of settlement on 07.02.2017.
The plaintiff now requests that
1. the defendant be ordered to pay her € 2538.13 plus interest at a rate of 5 percentage points above the prime rate from December 2, 2014,
2. the defendant be ordered to pay her reasonable compensation for pain and suffering, at least € 5200 plus interest at a rate of 5 percentage points above the prime rate from December 2, 2014.
3. order the third defendant to pay her a further € 1029.35 plus interest at a rate of 5 percentage points above the prime rate from the pendency of the action.
The defendant requests that the action be dismissed.
As a counterclaim, he originally requested that
the defendant be ordered to pay him € 7809.86 plus interest of 5 percentage points above the base interest rate from 17.08.2014 as well as the costs of pre-litigation proceedings in the amount of € 729.23.
By letter dated 17.08.2015, he partially withdrew the counterclaim with regard to interest.
He now requests that
the defendant be ordered to pay him € 7809.86 plus interest at a rate of 5 percentage points above the prime rate from 23/09/2014 as well as the costs of pre-litigation proceedings in the amount of € 729.23.
The plaintiff requests that
the counterclaim be dismissed.
The defendant claims that the treatment was carried out lege artis. The prosthetics were loosened in several sessions at the plaintiff’s request. On July 31, 2014, the plaintiff complained that the mandibular prosthesis was too loose. This was then tightened. On 14.08.2014, the maxillary prosthesis on tooth 22 was also made to move more easily. After appropriate instruction in the practice, the plaintiff was always able to loosen the dentures independently. She had always refused the repeated offers of rectification. With regard to the reclaiming of the fixed allowance, he contests the plaintiff’s entitlement to take action.
The court took evidence by obtaining an expert opinion together with an oral explanation. Please refer to the contents of the court file for the result of the expert opinion by Prof. Dr. *** and for further details of the facts and the dispute.
The action was received by the court on 14 July 2015 and was served on the defendant on 4 August 2015. The counterclaim was received by the court on 17.7.2015 and was served on the defendant on 6.8.2015.
Reasons for the decision:
The action is admissible but unfounded. The counterclaim is admissible and well-founded. The action is not well-founded.
The defendant is not entitled to claim compensation for pain and suffering or damages against the third-party defendant, neither from the point of view of culpable breach of contract (Section 280 (1) BGB) nor due to a tortious act (Section 823 BGB),
The taking of evidence did not reveal a relevant treatment error. This is to the detriment of the plaintiff.
The expert stated that a faulty occlusion could not be established as the prosthetics in dispute were no longer incorporated. However, even on the basis of the expert opinion of the health insurance expert Dr. ***, it was not apparent that there had been a lack of occlusion at the time.
Due to the changes made to the prosthetics by the aftercare provider, it was also no longer possible to determine whether the veneering of the canines in the lower jaw had been too short. The outer telescopes of the maxillary and mandibular dentures, which were each incorporated into the model casting base, were subsequently filled or relined with white plastic. The photos submitted by the plaintiff do not indicate otherwise. However, even if – assuming – the veneer had not completely covered the metal margin, this would not constitute a design error. In telescopic crown restorations, it is often necessary to position the margin of the outer part over the crown margin of the primary telescope, but this is not an aesthetic defect. Moreover, the metal margins are not visible when speaking, but at most when laughing extremely hard.
There is also no cosmetically unfavorable design of the mandibular telescopic crowns on teeth 33 and 34.
The expert further states that it is also not possible to determine whether the prosthesis saddles were not fitted correctly. It can only be deduced from the findings of Dr. *** that the functional margins of the defendant’s prosthesis are longer than those of the newly fabricated prosthesis. However, it cannot be concluded from this that the functional margins of the older prosthesis were incorrectly designed.
Whether the prosthesis saddles were actually too long can also be left open. This is because the expert stated that the prosthesis saddles could have been improved with minor grinding measures. However, it is undisputed that the plaintiff refused to have the treatment rectified by the plaintiff before it was finally completed. The defendant’s non-defective performance therefore does not result in a completely unusable dental prosthesis. It is recognized in case law that the mere first fitting of a dental prosthesis, which reveals defects, in particular in the fit, does not yet constitute an interference with the physical integrity of a patient, but merely proves that the prosthetic workpiece owed is not yet free of defects with its integration (see OLG Dresden, decision of 21.01.2008 – NJW-RR 2009, page 30 ff.; OLG Oldenburg, judgment of 11.02.1967 – file number 5 U 164/96). Reasonable rectification measures are therefore to be accepted by a patient, as a dental prosthesis often does not fit “right away” without complaints even with the utmost precision of the dentist (see OLG Düsseldorf, judgment of 16.03.2000 – file number 8 U 123/99). Instead, the plaintiff terminated the contractual relationship and did not give the defendant the opportunity to rectify the situation. There are no apparent reasons why she could not reasonably be expected to accept such rectification. Insofar as the plaintiff has argued that the production of the prosthesis required 20 sessions, this is not sufficient to assume that the subsequent performance was unreasonable. It is undisputed that at least some of these appointments were for the primary insertion of the prosthesis and that these appointments are therefore not already attributable to the rectification work.
According to the expert, the friction of the mandibular prosthesis was not objectionable. The documentation of Dr. *** does not show that the friction in the lower jaw was too loose. It can be inferred from the treatment documents that the friction of the mandibular denture was reduced by the defendant. The defendant’s patient file shows that the friction of the mandibular prosthesis was initially sufficient and was only almost completely eliminated by the measures taken later to reduce the friction. In any case, however, sufficient friction was achieved on August 14, 2014 through the incorporation of two “Sitec elements”
, so that ultimately there was no malpractice.
Insufficient friction of the maxillary prosthesis also does not lead to liability on the part of the defendant. According to the expert, it can be assumed on the basis of Dr. ***’s treatment records that the maxillary prosthesis was not sufficiently fixed in the mouth. When exercising the chewing function, it could have come loose from the jaw and possibly become misaligned, so that difficulties in reducing food intake are conceivable. However, the plaintiff also refused a possible rectification by the defendant, which – as explained – must rule out the assumption of a treatment error. The expert explained that the friction of the maxillary prosthesis could also have been improved by incorporating “Sitec elements” if the prosthesis edges had been thick enough. In this case, it could be assumed that the denture edges were thick enough, as the maxillary denture was made by the same dental technician as the mandibular denture, but the latter also had the wall thickness required for the attachment of the “site elements”.
The Chamber was able to base its decision unreservedly on the expert findings reproduced above. In doing so, it first took into account that the expert’s professional competence could not be called into question under any circumstances. The expert appointed not only draws his expertise from his many years of medical and scientific work, but is also a court expert with extensive experience. In addition, the expert was able to explain his findings in a convincing and comprehensible manner and answered all queries in each individual case comprehensibly and precisely. The expert has consistently identified the basis of his findings, in particular the complete medical treatment records inspected together with the results of imaging procedures, and has clarified in detail the reason why the existing connecting facts led to the results found in each case. Accordingly, there are no recognizable deficiencies in the assessment from any aspect, so that the Chamber fully agrees with the expert’s statements.
In particular, the expert statements were not incomplete because the Chamber did not hear the doctors who continued to treat the plaintiff. It was out of the question to hear the follow-up doctors as witnesses. As a rule, according to the case law of the appellate senate superior to the chamber, the subsequent treating physician is not a suitable witness and therefore not to be heard as such, insofar as it concerns the assessment of whether a physician has violated the rules of medical art (cf. for example, OLG Cologne, judgment of 31.01.2001, Ref.: 5 U 155/00; OLG Cologne, judgment of 06.02.2008, Ref.: 5 U 106/06; OLG Cologne, order of 01.12.2011, Ref.: 5 U 167/11; OLG Cologne, order of 11.08.2014, Ref.: 5 U 11/14, each available in juris). The findings of the aftercare providers, in particular those of the health insurance expert Dr. ***, were taken into account in factual terms by the extensive consultation of the treatment documents and their evaluation by the court-appointed expert.
With regard to the repayment of the fixed subsidy paid by the health insurance company, the plaintiff already lacks the right to sue – irrespective of the fact that, as stated, a treatment error cannot be established. This lies with the health insurance company.
In contrast, the admissible counterclaim is well-founded. The defendant owes the plaintiff payment of the disputed invoice pursuant to Sections 611 and 398 BGB.
In particular, no circumstances are apparent that could have led to a loss of the third-party defendant’s claim to remuneration. In this regard, the Chamber does not fail to recognize that a breach of contract by the treating dentist can in principle result in the loss of the dentist’s claim to remuneration if the patient’s interest in the dentist’s service has ceased to exist due to the inadequate medical treatment and the dentist’s service is completely useless for the patient (BGH, VersR 2011, 883 f.). This does not lead to a different assessment in the case to be decided here, because the conditions under which the claim for remuneration may cease to apply in individual cases are not met in the present case. The treatment was carried out – as explained – lege artis. Even insofar as defects can be established, the claim for remuneration does not lapse. This is because the plaintiff – as already stated – did not give the defendant any opportunity to rectify the defect, so that it cannot be assumed that the treatment was completely unusable.
In addition, the plaintiff used the dentures commercially by removing the precious metal part of the inner telescopes from the prosthetics and selling them. However, a dentist’s fee claim only lapses – even if it is assumed to be defective – if the prosthetic restoration provided is completely unusable for the patient and the patient does not actually or economically use this restoration (OLG Cologne, decision of March 30, 2015, case no. 5 U 139/14). The economic use in the sale of the precious metal parts therefore also justifies the payment obligation.
The interest claim arises on the merits from Sections 280 (1), (2), 286 BGB and the amount from Section 288 (1) sentence 2 BGB.
The claim for reimbursement of pre-trial legal fees also arises from Sections 280 (1) sentence 2, 286 BGB.
The decision on costs is based on Sections 269 (2) sentence 2, 92 (1) no. 2, 91 a ZPO. In the absence of a claim for remuneration, the plaintiff’s application for a declaratory judgment, directed at the non-existence of the obligation to pay remuneration for the prosthetics in dispute, was unfounded from the outset.
The decision on provisional enforceability is based on Section 709 BGB.
The amount in dispute is set at € 15,547.99.
(claim € 7738.13
Counterclaim € 7809.86
taking into account Section 45 (1) sentence 3, as the claim for a declaratory judgment and the counterclaim concern the same subject matter)
*** *** ***
(Judge at the Regional Court *** is on maternity leave and therefore unable to sign)