Medical Law

Dental malpractice: should dentists pay compensation or be given a chance to correct mistakes?

A patient in Germany has won compensation after a dentist made errors in diagnosis. The Regional Appeal Court of Thuringia held that under German medical law, a patient is not obliged to give the dentist a chance to correct mistakes (Az.: 4 U 549/11).

patient, behandlungsfehler, zahnarzt

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Compensation for dental errors

The appeal court reversed a decision of the lower courts which had originally held that patients who suffer as a result of dental malpractice may not claim compensation. The court noted that any claims for compensation must be substantiated by concrete evidence of dental mistakes.

The patient in the case complained that the dentist had made an incorrect diagnosis concerning the insertion of crowns and inlays. As such, the claim was brought for the failure to exercise reasonable care and skill in providing a service as opposed to “production” of the dental prosthetics.

Correction of dental mistakes

The lower court argued that a claim for compensation can only arise after a dentist has had the opportunity to correct the mistake. The consequence of this position is that a patient would be required to allow a dentist who made mistakes during dental surgery to correct those mistakes.

The Regional Appeal Court of Thuringia took the view that requiring patients to give dentists a chance to correct dental mistakes would undermine the position of trust in which dentists find themselves.

Medical services under German contract law

Under German contract law, an injured party must give the party at fault an opportunity to correct a mistake before a claim for compensation can be brought. A person who purchases a faulty product, for example, must first give the seller the opportunity to repair or replace the product. The purchaser cannot move directly to bringing an action to refund the purchase price.

The regional appeal court judges, however, were not prepared to extend this principle to contracts for medical services, finding instead that the duty of trust a dentist owes towards a patient should to be protected.

As dentists provide a services of high professional standing, patients are entitled to terminate a contract for services at any time under § 627 sub-paragraph 1 of the German Civil Code. The termination can be established through conduct such as not taking advantage of further services offered or by cancelling a course of treatment. Following termination of the contractual relationship the opportunity to correct mistakes is extinguished.

The court found that in the current case, that once given, a misdiagnosis can no longer be corrected. In doing so, the court distinguished the case from a previous decision of the German Federal Supreme Court (Az.: VI ZR 133/10), which did not differentiate between the types of mistake a dentist can make.

Conclusion

With its decision, the Regional Appeal Court of Thuringia has confirmed that patients have the right to decide whether to change their dentist. However, where dental services revolve around prosthetics, patients must give dentists a chance to correct mistakes before a claim for compensation can be brought (see OLG Frankfurt a.M., decision from 06.01.2009 Az.: 8 U 31/07).

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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