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No compensation for pain despite teeth being pulled out unintentionally
A plaintiff tried to claim damages and compensation for pain and suffering from the Higher Regional Court in Oldenburg because two teeth were allegedly pulled without permission. The lawsuit inevitably suggests a supposedly harmless visit to the dentist, at the end of which two teeth are suddenly missing. However, this was by no means the case with the applicant. She had made an appointment with the complained maxillofacial surgeon for the extraction of the two teeth and had changed her mind shortly before the operation, without communicating this sufficiently with the maxillofacial surgeon.
The plaintiff's dentist recommended the extraction of the two teeth to the woman and therefore referred her to the maxillofacial surgeon, reports the Oldenburg Higher Regional Court. In the interview, the defendant also pointed out the possibility of a root tip resection, since the woman had considerable concerns about the unwanted tooth loss, felt no pain in the teeth and was extremely critical of the removal. Nevertheless, the maxillofacial surgeon, like the attending dentist, recommended that she pull both teeth. In the end, the plaintiff gave her consent and made an appointment for an operation directly in practice.
A root tip resection was desired. Three months passed before the scheduled operation date, in which the woman changed her mind and came to the conclusion that she only wanted a root tip resection. However, she did not speak to the attending maxillofacial surgeon or the practice staff about this change of heart, "but only without a word gave a correspondingly modified referral slip when entering the practice," reports the Higher Regional Sand Court. Immediately before the operation, there was no possibility of speaking to the maxillofacial surgeon, so the surgeon pulled the two molars of the woman without hesitation, since he had not noticed the changed referral slip.
No claim for damages and compensation for pain and suffering The woman asked the maxillofacial surgeon for pain relief of 6,000 euros after the unwanted tooth removal and went to court with this matter. First in front of the district court of Oldenburg and when her complaint there was unsuccessful before the district court. Here, the 5th Civil Senate of the Oldenburg Higher Regional Court decided that the plaintiff was not awarded the "Claim for damages and compensation for pain and suffering due to allegedly incorrect medical treatment". The court "did not share the applicant's view that the originally granted consent to the operation performed no longer existed on the day of the operation." This consent does not lose its effectiveness as a result of the passage of time. In addition, it was not "the general task of the surgeon to check the continued existence of the consent." After the appointment, the applicant had the situation in her own hands until the operation and only had to cancel the appointment or simply did not have to appear if she did not do the surgery wished longer, said the Oberlandesandgericht.
Communicate changed treatment plan urgently with the doctor "If the patient appears, there is no reason to check the continued existence of the consent", reports the higher regional court of the judgment of the 5th civil senate (Az 5 U 101/13; lower court district court, Az 8 O 1834 / 12). Furthermore, the plaintiff did not effectively revoke her consent to pulling her teeth, because “simply handing over the changed transfer note is not enough for that.” The plaintiff should have made clear her change of heart towards the defendant or his employees. It remains unclear why the woman did not respond to her changed ideas in one word, but merely submitted the changed transfer slip. Patients in comparable situations are strongly recommended to clearly formulate their ideas for the treating physicians and, in case of doubt, to postpone the procedure or to make a new appointment. (fp)
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