132 C 82/11
Cologne Local Court
IN THE NAME OF THE PEOPLE
Judgment
In the legal dispute between *** AG, legally represented by the Management Board, *** plaintiff, attorney at law *** against Ms ***, defendant,
attorney at law Brandl, Neusser Str. 182, 50733 Cologne, Cologne Local Court
in simplified proceedings pursuant to Section 495a ZPO without an oral hearing on 18.05.2012 by the judge ***
ruled in favor of the court:
The defendant is ordered to pay the plaintiff € 19.38 plus interest in the amount of 5 percentage points above the respective base interest rate since February 26, 2011. The remainder of the action is dismissed.
The plaintiff shall bear the costs of the legal dispute.
The judgment is provisionally enforceable, but for the defendant only against the provision of security in the amount of 120 % of the amount to be enforced in each case.
– without facts according to § 313 a ZPO –
Reasons for decision
The plaintiff has a claim against the defendant from assigned rights for payment of € 19.38 pursuant to Sections 611 (1), 398 BGB. It is undisputed that a dental treatment contract was concluded between the defendant and the assignor. The actual performance of the services listed in the invoice dated 16.03.2010 (cf. copy p. 12 GA) is undisputed. The medical necessity of the digital volume tomography (DVT) is disputed between the parties. Since the two other invoice items – detailed examination with recording of findings in the amount of € 12.92 and vitality check of one or more teeth in the amount of € 6.46 – are not questioned by the defendant, there are no doubts as to the justification of this part of the invoice. The assignment of the claim for remuneration to the plaintiff is effective within the meaning of § 398 BGB; the defendant has declared its consent to this in writing (cf. copy p. 13 GA).
However, the plaintiff has no claim against the defendant for payment of € 209.83 for the performance of the DVT from the dental treatment contract pursuant to §§ 611 para. 1, 398 BGB. This is because the service billed in this respect with the invoice dated March 16, 2010 was not medically necessary. Pursuant to Section 1 (2) sentence 1 GOZ, a dentist may only charge fees for services that are necessary for dental treatment in accordance with the rules of the dental art. Whether a service is necessary is to be determined from a medical point of view on the basis of an objective standard according to its purpose (see Zuck, Gebührenordnung für Zahnärzte, 1st ed. 2012, Section 1 GOZ para. 8 with further references). The digital volume tomography performed by the assignor on March 9, 2010 did not meet this requirement. According to the results of the taking of evidence, the court is not convinced (§ 286 ZPO) that this treatment was necessary. In his expert opinion, the expert Dr. *** stated that, contrary to the plaintiff’s assertions, there were no indications of a suspected diagnosis of a midface fracture in the defendant. He explained that in the case of a midface fracture after a severe fall, massive edema, which is usually associated with extensive bruising, occurs (p. 75 of the expert report). Even in the lesser form, there is a large contiguous bone fragment that has been blown off, which is clearly visible and palpable (sheet 76 GA, p. 10 of the expert opinion). Nothing of the kind was present in the defendant’s case. An OPG, as performed by the university hospital in the present case, is suitable for the primary exclusion of midface fractures. None of the documents from the university hospital gave rise to any suspicion of a midface fracture (p. 78 f. GA, p. 12 f. of the expert opinion). Against this background, the expert assesses it as medically unnecessary to perform a DVT on the defendant at that time. There are no reasons to doubt the detailed and comprehensible explanations of the expert.
The plaintiff’s submission that the defendant had not pointed out to the assignor in her description of the accident that she had already presented herself at the university hospital and that a computer tomography of her head had been carried out there, which did not reveal any pathological findings, does not change this result. This is because the submission is already contradictory. According to the plaintiff’s previous submission, the defendant had presented the assignor with paper printouts of individual images of teeth 11 and 12 as well as an OPG paper printout from the university clinic. She was also referred to the assignor by the university clinic. On presentation of these documents, it should have been obvious to the assignor that the necessary initial treatment had already been carried out at the university clinic. In any case, he should have made more detailed inquiries. Irrespective of this, however, the expert’s comprehensible findings that there were no indications of a midface fracture that would have given rise to the performance of the DVT remain valid. The examination was not medically necessary for the patient at this time.
The asserted claim can also not be based on the exception rule of § 1 para. 2 sentence 2 GOZ. Accordingly, in order to charge for services that do not meet the requirements of Section 1 (2) sentence 1 GOZ, the defendant must have requested the provision of the unnecessary services. The plaintiff does not claim that the defendant expressly requested the performance of a digital volume tomography in the knowledge that this was not medically necessary. In any event, the alleged consent to the performance of the examination does not constitute such a request.
The claim for interest results from Sections 291, 288 (1), 696 (3) ZPO.
The procedural ancillary decisions are based on Sections 92 (2) no. 1 analogous, 708 no. 11, 711, 713, 709 sentence 1 and sentence 2 ZPO.