Abstract
Patients can only legally commit to dental implant treatment if they were informed in an adequate and comprehensive manner (Oehler 2003; Ries et al. 2002; von Ziegner 2001; Schinnenburg 2000; Ratajczak 2000; Gaisbauer 1995,1997; Fallschüssel 1985; Könning 1989; Deutsch 1983). This principle is universally valid in the European and North American legal systems and is a logical consequence of every patient’s right to self-determination and personal liberty (Fischer and Lilie 1999). It is incumbent on the implantologist, based on his knowledge of the literature and his own experience, to critically appraise and re-define the precise meaning of «adequate», «comprehensive» and «state of the art» on a continuous basis. Dentists are not generally required to inform their patients of any outdated treatment techniques if newer, simpler, cheaper or less invasive techniques are available. They are required, however, to inform their patients of any new techniques known to yield similar results if they offer tangible benefits for the patient, even though these techniques may not be widely used (German Dental Association 2003). This provision can make it mandatory for users of traditional techniques to inform their patients of BOI, particularly when indications show that the patient does not wish to be treated with bone grafts harvested from the iliac crest or skull.
Keywords
- Dental Treatment
- Insurance Provider
- Arbitral Tribunal
- Consumer Contract
- Unfair Term
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- 1.
E.g. questions concerning the timing of patient information; the requirement of obtaining case acceptance in writing; the handling of minors or foreign-language patients; the option of renouncing information if a patient does not wish to be informed or of providing additional information in connection with unexpected intraoperative events.
- 2.
E.g. if the inferior alveolar nerve is likely to be injured due to its close proximity to the surgical site, the patient has to be informed in unequivocal terms about the potential risk of permanent consequences.
- 3.
OLG (Superior Court) of Munich ruling 24 U 117/85 of 19 September 1985; patients undergoing cosmetic surgery must be informed about the risks involved with «unsparing frankness».
- 4.
Awarding of damages for «pain and suffering» following the use of a nickel-containing bridge despite evidence of nickel allergy; OLG (Superior Court) of Bremen ruling 3 U 28/00 of 13 February 2001.
- 5.
Specific acceptance of this fact must be obtained due to the unenlightened notion of patients that individual jaw areas are basically unrelated to each other, so that treatment can always be confined to specific areas that are acutely in need of restorative measures.
- 6.
The fundamental importance of patient information being properly documented becomes clear in cases where the information document has been lost and the patient later denies that he or she was ever informed. All that the dentist can do in this situation is try to demonstrate based on his documentation available for a large number of similar cases that he has always informed his patients. The patient, by contrast, will focus on the singularities of his specific case in an attempt to defeat this line of reasoning. The written information form may then obtain the decisive role of a voucher: if the debtor is unable to produce the voucher, then the creditor will be able to make him pay twice. In our case at hand, this means that the patient will be able to hold the dentist liable for damages.
- 7.
BGH (German Federal Court) ruling VI ZR 266/02, NJW 2003,1862 of 18 March 2003.
- 8.
LG (District Court) of Saarbrücken ruling 16 S 10/99 of 6 March 2002; LG (District Court) of Duisburg ruling 4 O 138/97 of 22 September 2003; OLG (Superior Court) of Düsseldorf ruling 4 U 205/97 of 17 November 1998; also see NVersZ 1999,473.
- 9.
E.g. extraction of eight healthy teeth because a patient thinks they are the sole cause of her headaches. As a general rule, dentists should never allow themselves to be swayed, neither by patients nor by insurance providers, to execute specific treatment modalities against their better judgement.
- 10.
In Germany and Switzerland; the situation is different in the UK, for instance, where the court experts are selected by the parties themselves.
- 11.
Council Directive 93/13 EEC (on unfair terms in consumer contracts).
- 12.
In French law, the physician’s obligation is defined not as obligation de résultat but as obligation de moyens. By the same token, this type of contract is not a Werkvertrag but a Dienstvertrag under German law.
- 13.
Hawkins v. Me Gehe, 84 N.H. 114,146 A. 641 (1929).
- 14.
Court ruling 8 U 65/98 at OLG Düsseldorf of 17 December 1998 (Prothetik mit keramikverblendeten Kronen: “das weißeste Weiß”).
- 15.
The EU Council Directive of 9 November 1990 on service already included a provision (article 1, paragraph 2) to the effect that the burden of proof for service provider’ negligence should be reversed. The directive was withdrawn; presumably, the concept will be reintroduced de lege ferenda in a new Council Directive on medical professions. German: Die Medizinhaftung nach dem neuen Schuldrecht und dem neunen Schadensrecht, JZ 2002,588.
- 16.
The fact that attainable damages have reached nowhere near the level of the sums involved in the US is due to the fact that US law provides for “punitive damages” to be awarded in addition to regular damages because all cases of malpractice have criminal proceedings as a routin corollary.
- 17.
There are currently around 140 of these medical societies in Germany, which have published guidelines and recommendations of varying legal force (www.uni.duesseldorf.de/WWW/AWMF/awmfleit.htm).
- 18.
The situation can be compared to a violation of DIN standards in construction works, which is assumed to be the causative factor if damage has occurred.
- 19.
According to Ziegler’s Leitlinien im Arzthaftungsrecht, VersR 2003, 545, this type of regulatory frameworks has not made a decisive impact on any lawsuits brought in by patients but has played an insignificant role in court to date. For different opinions in the literature, see Figgener, Rechtliche Aspekte von Leitlinien, Deutsche Zahnärztliche Zeitschrift, 2003,11.
- 20.
The use of a specialized system by users who have no certification for this system may be in violation of § 11 Berufsordnung der MBO-Ä 1997/2000, which stipulates that physicians about to perform treatment undertake to use a conscientious methodology with appropriate examination and treatment techniques.
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Zach, M. (2005). Counselling and Case Acceptance. In: Principles of BOI. Springer, Berlin, Heidelberg. https://doi.org/10.1007/3-540-26987-8_24
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