30 218/09
Announced on 24.05.2012
ON BEHALF OF THE PEOPLE
Verdict
In the legal dispute
********************************************************,
Plaintiff,
Attorney of record: Bernd Brandl, Neusser Straße 182, 50733 Cologne,
vs.
*********************************************************,
Defendant.
Authorized representative:
the 3rd Civil Chamber of the Regional Court of Düsseldorf
to the oral hearing of 26.04.2012
by the presiding judge at the regional court ***
found to be right:
The defendant is ordered to pay the plaintiff compensation for pain and suffering in the amount of EUR 1,000 plus interest in the amount of 5 percentage points above the base interest rate since June 5, 2009.
It is established that the defendant is obliged to compensate the plaintiff for all further damages resulting from the faulty treatment in the period from October 11, 2005, insofar as these are attributable to the loss of tooth 38 and the faulty blocking, and the claims have not been or will not be transferred to social insurance carriers or other third parties.
The remainder of the action is dismissed. The plaintiff shall bear the costs of the appeal to the Düsseldorf Local Court, which has no jurisdiction. In all other respects, the costs of the legal dispute are set off against each other. The judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.
Facts:
The plaintiff is making a claim against the defendant for dental treatment from 2005 onwards.
The plaintiff, born in 1946, underwent dental treatment with the defendant from October 11, 2005. In March 2006, a three-year-old bridge combination in area 33 – 38 in the lower left jaw was removed and replaced with a new one. Until 2008, the entire upper and lower jaw was treated with zirconium oxide bridges and
– crowns. On 31.03.2006, the defendant began with the new restoration of the
He took impressions of this area. A framework try-in was carried out on 14.04.2006. On April 21, 2006, the bridge was provisionally inserted. On June 19, 2006, the defendant removed the provisionally inserted bridge construction. In August 2006, a new pontic was inserted in the tooth area 33 – 38. On September 27, 2006, the plaintiff again presented himself to the defendant. The defendant replaced the pins in regions 34 and 35. On October 30, 2006, the plaintiff complained of premature contact during the advancement movement. On 01.11.2006 and 24.11.2006 the defendant checked by means of occlusal paper. A further appointment took place on 07.12.2006. In 2007, the plaintiff presented several times for check-ups and treatment of other dental areas. On January 8, 2008, the defendant removed the bridge due to pain and removed 2 pins. On January 11, 2008, a new gold pin and the bridge were provisionally inserted. On 17.01.2008 the bridge was ground again. On 22.01.2008 and 28.01.2008 the bridge was ground again. On 13.02.2008, the defendant ground the
new gold pin and inserted the ground bridge provisionally. On February 14, 2008, the defendant again inserted the bridge provisionally. On March 6, 2008, the bridge was sent to the laboratory for construction. The bridge processed there was tried in on March 10, 2008, ground and sent to the laboratory again. It was permanently inserted on 11.03.2008. On 04.12.2008, the plaintiff received emergency treatment from Dr. ***.
The plaintiff alleges treatment and information errors. The treatment was reproachably faulty from a dental point of view. Teeth 33 – 38 did not have the necessary substance for the dentures made. It was faulty not to arrange for imaging in 2005. A different restoration, or at least a pre-treatment, should have been carried out. Due to persistent pain, an imaging examination should have been carried out. The planning and fabrication of the bridge combination 33 – 38 was faulty. All crowns used by the defendant were defective, in particular with regard to the crown margin design, the appearance and the lack of glaze firing. These are errors that a dentist is absolutely not allowed to make. The blocking was also faulty and the plaintiff had not been informed about it. Otherwise, he would have decided against such blocking, as it makes cleaning so difficult. There were adverse health consequences. Due to the aforementioned errors, tooth 34 could no longer be preserved. For this reason, the plaintiff also lost tooth 38. The gap could therefore only be closed with implants. All crowns and bridges would have to be replaced. Due to the treatment errors, the plaintiff suffered severe pain in the area of the left lower jaw.
The plaintiff requests,
1. order the defendant to pay the plaintiff reasonable compensation for pain and suffering of at least 2,000 plus interest of 5% above the prime rate from June 5, 2009;
2. declare that the defendant is obliged to compensate the plaintiff for all further damages resulting from the incorrect treatment in the period from October 11, 2005, insofar as the claims have not been or will not be transferred to social insurance carriers or other third parties.
The defendant requests that the action be dismissed.
He claims that the treatment complied with the rules of the dental art. The dental situation was already desolate in October 2005. In September 2006, the plaintiff had already inserted a construction ground by the dental technician himself. Until the beginning of 2008, the plaintiff had not complained of pain in region 33 – 38. On January 8, 2008, the plaintiff developed cervical caries, so that the bridge had to be removed. The information had been correct. The plaintiff had been informed in detail by the defendant about the possibility of remedying his dental status, including alternative treatment options. The plaintiff had rejected an implant restoration for cost reasons. The defects that occurred were fateful or attributable to the underlying disease and treatment alio loco. The plaintiff is an occlusion neurotic, a psychosomatic dentist, an extreme presser, suffers from bruxism and CMD (i.e. craniomandibular dysfunction, i.e. dysregulation of muscle or jaw joint function). In addition, the plaintiff had poor oral hygiene.
The plaintiff initially brought the legal dispute before the Düsseldorf Local Court. Following the determination of the value in dispute and the plaintiff’s application for referral, this court declared that it did not have subject-matter jurisdiction by order dated 16.06.2009 (BI. 21), to the contents of which reference is made, and referred the legal dispute to the adjudicating chamber. The chamber took evidence on the basis of the orders to take evidence dated 13.10.2009 (BI. 60), 27.05.2010 (BI. 118) and 15.12.2010 (BI. 162), to the content of which reference is made, by obtaining a written expert opinion together with a supplementary opinion and hearing the expert at the hearing. For the result of the taking of evidence, reference is made to the written expert opinion of the expert Dr. med. dent. *** dated 14.04.2010 (BI. 81 et seq.) and 28.09.2010 (BI. 134 et seq.) as well as the minutes of his hearing on 06.02.2012 (BI. 189 et seq.).
For further details of the facts of the case and the dispute, reference is made to the written submissions exchanged between the parties together with the annexes and the minutes.
Reasons for the decision:
The action is only partially successful. The action is partially successful to the extent shown in the operative part. The plaintiff has a claim against the defendant for payment of compensation for pain and suffering in the amount of EUR 1,000 plus interest due to the – at least partially – grossly incorrect dental treatment, insofar as it concerns tooth 38 and the blocking of the denture, §§ 611 (dental treatment contract), 278, 280, 253, 252, 823, 831, 843 BGB. Based on the undisputed facts of the case and the results of the taking of evidence, it is clear that the treatment of the plaintiff was not carried out in a lege artis manner in all respects and that it cannot be ruled out that this treatment caused some of the complaints alleged by the plaintiff. In this respect, the claim for a declaratory judgment pursued by the plaintiff is also admissible and justified pursuant to Section 256 (1) ZPO, namely insofar as it concerns the loss of tooth 38 and the consequences of the blocking. Otherwise, the action was to be dismissed, as further treatment errors were not attributable to the defendant with the certainty required for § 286 ZPO. In this respect, the request for a declaratory judgment is also unfounded.
In particular, it was not appropriate and contradicted the professional dental standard that the denture was only inserted on the basis of the OPG of June 28, 2004 without taking a new X-ray diagnosis, which would have shown the inflammatory process two months later with sufficient probability as early as October 2005.2004 without taking a new X-ray diagnosis, which would have shown with sufficient probability the inflammatory process detected two months later in October 2005, so that the restoration of tooth 38 should not have taken place and would then have been an error that would have constituted a clear violation of proven dental treatment rules and would have been an error that would no longer have been understandable from an objective dental point of view, as it is absolutely not allowed to happen to a dentist. The Chamber follows the comprehensible and consistent findings of the court-appointed expert Dr. *** in his expert opinion of 14.10.2010 in the form of the supplementary opinion of 28.09.2010, which the expert explained vividly and completely convincingly orally in the hearing of 06.02.2012 before the rapporteur as the assigned judge.
As the expert explained, the defendant must have had the OPG of June 28, 2004 in October 2005, on which marginal defects were visible in teeth 33 and 34, which made it necessary to replace the dentures in the left lower jaw. However, the fact that no new X-ray diagnosis was made is an error in the findings. A further X-ray diagnosis would most likely have shown the inflammatory process in tooth 38 that was visible on the X-ray taken two months later. The image of July 5, 2006 also showed an inflammatory process, namely an interradicular osteolytic process (i.e. a bone-dissolving process), which can cause discomfort or pain. A restoration should not have been carried out. Tooth 38 should not have been crowned. The fact that an almost 2-year-old panoramic slice was taken as the basis for the start of treatment must be considered a serious planning error. It can be assumed that there were already problems in this area, i.e. tooth 38, which the defendant should have noticed. According to the legal assessment of the chamber, based on the expert advice, a crowning of tooth 38, which was nevertheless carried out without preliminary treatment, would have constituted an error that a dentist absolutely must not make, i.e. a gross treatment error.
According to the expert statements, the blocking as it was carried out also constitutes a treatment error. Although the blocking itself was not fundamentally wrong, it was carried out in such a way that cleaning is no longer possible with reasonable effort. With crown blocks, the interdental spaces are very difficult to maintain and must be designed in such a way that maintenance is possible at all. In this case, the interdental spaces in the upper jaw of the two small molars on the right and left are so narrow due to large blocking – for no apparent reason – that care with the smallest interdental brushes is not possible, which has led to inflammation in the interdental spaces on both sides in this area. Although a lack of stability is generally a reason for a blockage, this is at most the case with teeth 33 and 34, but cleaning is very difficult and time-consuming and the ability to do so cannot be assumed.
The diagnostic error is also to be regarded as causal for the loss of tooth 38. Due to the established diagnostic error, the burden of proof with regard to causality for consequences is reversed to the detriment of the practitioner, so that consequences which the treatment error was objectively capable of bringing about are then deemed to be causally attributable to the treatment error, unless the practitioner proves that such causality is excluded or that a causal connection is extremely unlikely (cf. a causal connection is extremely unlikely (see BGH, judgment of June 7, 2011, case reference: VI ZR 87/10, cited in Juris, para. 7 et seq. with further references).
However, the defendant cannot prove that the error established above was not causal for the loss of tooth 38 with the certainty required for Section 286 ZPO, i.e. with a certainty sufficient for practical purposes that silences doubts without completely excluding them.
Here, too, the Chamber relies on the expert opinion of the expert Dr. *** . The expert stated that the plaintiff had probably not lost tooth 38 due to a treatment error by the defendant and that this tooth could probably not have been saved. However, although it was unlikely that tooth 38 could have been saved by healing, the expert did not want to rule this out completely. According to his explanations, tooth 38 was most likely lost due to the inflammation that already existed beforehand. However, he also did not rule out the possibility, albeit less likely than the opposite, that tooth 38 could have been saved by root canal treatment and subsequent healing. That the plaintiff had lost tooth 38 due to bruxism (i.e. grinding) could not be ruled out, but was unlikely, because then other teeth would also have been affected. In the case of bruxism, it is very unlikely that other teeth are not also affected, first of all the weakest tooth, which in this case was tooth 34 and not tooth 38.
The complaints and pain described by the plaintiff are also credible and probable on the basis of the expert examination and the x-ray findings. The inflammatory process on tooth 38 can cause pain.
Furthermore, treatment errors that could be attributed to the defendant could not be established with sufficient certainty in accordance with § 286 ZPO. No error could be established in a possible lack of pre-treatment. In this regard, the expert stated that there was no malpractice. The pre-treatment was necessary, but was also sufficient in this case. A bridge tooth replacement was the method of choice in 2005, as teeth 33, 34 and 38 (with the above-mentioned restrictions) were well anchored in the jawbone and showed no apical changes. Splint treatment was necessary as pre-treatment, as a bite elevation was planned and later carried out and the planned restoration was extensive. However, this treatment was also carried out by the defendant. Pre-treatment over a period of 5 months is sufficient: In the case of a planned bite elevation, pre-treatment over a period of 3 months is considered sufficient.
There is also no treatment error in the fact that the defendant failed to carry out an imaging procedure after the onset of symptoms. According to the expert’s findings, the defendant took a panoramic slice on July 5, 2006.
On the question of the manufacture of the bridge combination, the expert was only able to assess the second one, which was also no longer complete and had to be repositioned on the basis of the tooth and missing pontics submitted by the plaintiff. This showed the defects in marginal fit and occlusion identified by the expert and could therefore not be attributed with sufficient certainty to the defendant’s treatment.
It is understandable that an attempt is made to preserve such a complex dental prosthesis by grinding it in, according to the expert’s explanations. It is not possible to verify who carried out the grinding, even if 12 grinding appointments took place at the defendant’s premises.
The glaze firing was not missing on the crowns and bridges, the surface roughness is a condition caused by the grinding measures carried out and not by the omission of the last ceramic firing. Surface roughness is not in itself a treatment error.
The expert was also unable to establish causality. The fact that tooth 34 can no longer be preserved is not a condition that can be traced back to a treatment error. This tooth already had a large substance defect at the distal edge of the crown, which was filled with radiopaque material, before the defendant began treatment. However, a new restoration results in an additional loss of substance, which is not to be regarded as a treatment error, but is in the nature of things. The replacement of the bridges also certainly resulted in an additional loss of substance. However, a loss of substance cannot be avoided here.
The problems with the masticatory muscles, including the CMD, are due to the lack of occlusion which, for the reasons set out above, was not certainly attributable to the defendant’s treatment.
For the reasons set out above, the Chamber considers compensation for pain and suffering in the amount of EUR 1,000 to be appropriate. The Chamber has determined the amount of compensation for pain and suffering taking into account all circumstances relevant to the assessment and in a reasonable proportion to the nature and duration of the injury. The sum of 1,000 euros is appropriate and sufficient. It is true that the satisfaction function, which is otherwise to be taken into account when assessing compensation for pain and suffering, had to be disregarded, as the defendant acted in a recognizable effort to provide the plaintiff with dental assistance despite his faulty dental services. On the other hand, it could not remain without effect that the defendant – assuming the probable x-ray findings – acted grossly incorrectly. However, the fact that tooth 38 was already pre-damaged had to be taken into account to reduce the compensation for pain and suffering.
The claim for interest with regard to compensation for pain and suffering follows from Sections 286, 288 (1), 291 BGB.
The decision on costs follows from Sections 92 (1), 281 ZPO. The decision on provisional enforceability is based on Section 709 ZPO.
The amount in dispute is set at EUR 5,859.00, of which EUR 3,859.00 is for the application for a declaratory judgment.