-113 C 625/13
Cologne Local Court
IN THE NAME OF THE PEOPLE
JUDGMENT
In the legal dispute
of *** GmbH
Plaintiff, represented by: Rechtsanwälte ***
against
Ms *** Cologne,
Defendant, represented by: Rechtsanwalt Brandl, Neusser Str. 182, 50733 Cologne
the Local Court of Cologne. Dept. 113
in written proceedings pursuant to § 495 a ZPO
on 22.04.2016
on the basis of the pleadings received by then
by the judge ***
ruled in favor of the court:
1. the action is dismissed.
2. the costs of the proceedings shall be borne by the plaintiff.
3. this judgment is provisionally enforceable.
– The facts of the case are not presented, § 313 a ZPO –
Reasons for the decision:
The action is unfounded
The plaintiff has no claim against the defendant for a dental fee in the amount of EUR 408.81 based on an acknowledgement of debt pursuant to Section 780 BGB. § 780 BGB.
The partial payment agreement of 13.07.2010 does not establish an original claim for payment by the plaintiff. The defendant’s intention to be legally bound is lacking, as the defendant has not indicated that it is obliged to pay the amount in dispute. The plaintiff’s submission is not sufficiently substantiated in this respect. In particular, the payment in the amount of EUR 40.69 of July 26, 2010 was only made under reservation, as evidenced by the bank statement submitted by the defendant.
The plaintiff has no claim against the defendant for dental fees in the amount of EUR 408.81 from assigned rights pursuant to sec. §§ 611 para. 1, 398 BGB. Between the plaintiff and the attending physician Dr. med. dent. *** there is an assignment agreement. However, the fee claim against the defendant assigned under this agreement has not arisen. A treatment contract for the provision of dental services was concluded between the defendant and the assignor on June 27, 2010. However, no effective private medical fee agreement has been concluded beyond the statutory rates.
It can be left open whether the fee agreement is already void for formal reasons, in particular whether the declaration of the defendant on site due to the delivery in an emergency situation can no longer be qualified as “before” the provision of the service in accordance with Section 2 GOZ. § 2 GOZ is to be qualified. This is because the private medical billing by the assignor (cf. Annex K 2 of the appendix) was incorrect in terms of content.
Contrary to the plaintiff’s view, the claim to dental remuneration does not exist in the present case irrespective of the question of whether the requirements of Section 5 (2) GOÄ are met. From the wording of § 2 para. 2 GOÄ: “(…) after personal agreement in the individual case (…)” follows the individual case character of every medical fee agreement (see Uleer/Miebach/Patt, § 2 GOÄ para. 29). In the present case, an interpretation in the sense of the plaintiff’s opinion is precluded by a special need for protection on the part of the defendant. This is because the latter sought out the assignor in an emergency situation and had indicated by presenting her health insurance card that she generally wished to be billed via the statutory health insurance. This was not outweighed by the assignor’s interest in having his costs covered. This is because the costs of an apicoectomy can generally be covered by statutory health insurance.
Moreover, in the present case, a fee claim would be contrary to fundamental principles of medical billing practice, irrespective of the requirements of Section 5 (2) GOÄ, since according to the result of the taking of evidence, the calculation of fee item 2730. was not justified per se, regardless of the fee rate (cf. BI. 6 of the expert opinion).
The fee approach does not meet the requirements of Section 5 (2) GOÄ. According to the results of the taking of evidence, it was not appropriate to apply an increase factor of 6.5 and 4.1 with regard to fee codes 2730 and 2442 for the procedure. The expert Dr. med. dent. *** established that with regard to the treatment of tooth 47, on which an apicoectomy was performed, the calculation of fee code 2730 cannot be charged in addition to the measures for billing an apicoectomy. The calculation was therefore already fundamentally incorrect, as it concerns a treatment measure that is fundamentally different from the treatment of an apicoectomy and must be billed separately (see BI. 6 of the expert opinion).
The further calculation of item 2442 with a 4.1-fold fee rate is not comprehensible from an expert’s point of view against the background of the insertion of bone substitute material into the resection area in the present case. The justification as “aggravation due to special local conditions. Operation close to the nerve, operation in the infected area” is not comprehensible according to the expert’s explanations, as it is therefore generally contraindicated to insert bone substitute material in the infected area. Furthermore, it follows from the location of the resection cavity in the periapical area in the specific case that, in the expert’s opinion, the implantation of bone replacement material was not made more difficult in such a way that it would be appropriate to bill it as performed. Accordingly, there was no particularly increased difficulty or increased expenditure of time.
The court was able to base its decision unreservedly on the expert findings set out above. The professional competence of the expert Dr. *** cannot be called into question from any point of view. The expert draws his expertise not only from his many years of experience as a dentist, but is also an extensively experienced court expert. In addition, the expert was able to substantiate his findings in a comprehensible and convincing manner. He consistently identified the basis of his findings, in particular the medical treatment records he inspected and the results of imaging procedures, and clarified in detail why the existing connecting facts led to the results found. Accordingly, no deficiencies in the expert opinion are discernible in any aspect, so that the court fully agrees with the expert’s statements.
Due to the lack of merit of the action with regard to the main claim, the plaintiff has no claims with regard to the ancillary claims. In view of the above, the action was therefore to be dismissed.
The ancillary rulings are based on Sections 91 (1), 708 No. 11, 711, 713 ZPO.
Amount in dispute: € 408.81
Decision on the admission of the appeal:
As this decision does not result in a complaint of more than € 600.00 leading to the opening of the appeal for either party, the court must examine the admission of the appeal at its own discretion, Section 511 (4) ZPO. Accordingly, the appeal was not allowed because the case was decided solely on the basis of the circumstances of the case at hand and therefore has no fundamental significance or the further development of the law or the safeguarding of uniform case law requires a decision by the court of appeal, Section 511 (2) no. 2 in conjunction with Section 511 (4) no. 1 ZPO. Para. 4 No. 1 ZPO.
Notice of appeal:
An appeal against this judgment is not admissible because none of the parties is adversely affected by this judgment with regard to a value of more than € 600.00 and the court has also not allowed the appeal. section 511 (2) no. 1 & 2 ZPO.