Compensation of damages for poor-quality dental implantation
On November 11, 2024, case No. 4711-24-00-2/3819, the Court No. 2 of Aktau, Mangystau region, consisting of: the presiding judge, G.Sh. Sakhanova, with the secretary of the court session, L. Kokisheva, considered the civil case in open court.: THE PLAINTIFF: R S S THE DEFENDANTS: Limited Liability Company " Dent" YU AND Ye THIRD PARTY: and THE PLAINTIFF'S CLAIM: About compensation for damages
On October 25, 2021, plaintiff R. Z.S. applied to the dental clinic of Dent LLP regarding the issue of implantation. The plaintiff was advised by a dental surgeon at the clinic, Yu I.E. (hereinafter referred to as defendant-2). On the same day, a 3D image of the plaintiff's mouth was taken, according to which the plaintiff had 9 more of his own teeth.
On October 29, 2021, the plaintiff and defendant-2 signed an informed consent to perform a "sinus lift" for the plaintiff, since the plaintiff's available bone mass was not enough to carry out the implantation, and then bone grafting of the upper jaw was performed. The plaintiff paid funds in the amount of 560,000 tenge to the cash desk of ".Dent" LLP (hereinafter – defendant-1). On March 09, 2022, defendant-2 removed 4 teeth in the plaintiff's upper jaw with the installation of 6 implants, for which the plaintiff paid 960,000 tenge to the clinic's cashier. On May 20, 2022, Defendant-2 removed 5 lower jaw teeth from the plaintiff and installed 7 implants, for which the plaintiff paid 935,000 tenge.
In October 2022, defendant-2 and a representative of defendant-1 will perform prosthetics for the plaintiff. And, in March 2023, the plaintiff turns to defendant-1 with complaints of swollen gums, their bleeding, stench, inability to chew food normally, its jamming between the crown and gum, soreness. Defendant -2 in March 2023 was already working at another clinic at Aktau, 7th microdistrict, then the plaintiff applied there. .
Defendant 2 removed the crowns and removed 3 lower jaw implants. After that, defendant -2 moved out of the city. On March 04, 2023, the defendant returned 3,010,000 tenge to the plaintiff, which she paid, which is confirmed by a receipt from the Russian Federation.. In June 2023, the plaintiff filed a complaint with the Department of the Committee for Medical and Pharmaceutical Control of the Ministry of Health of the Republic of Kazakhstan of the Mangystau Region (hereinafter referred to as the Department), requesting an audit of the activities of both defendants.
On July 12, 2023, the Department issued an act appointing an inspection for the period from July 14 to July 20, 2023, in which a dentist, I.M.A., was involved for an independent examination, who described the plaintiff's photographs after the intervention of defendant 2. By letter dated August 09, 2023, the Department informed that it was impossible to conduct an inspection, since The clinic was closed at every visit by Department staff. On November 03, 2023, the plaintiff entered into an agreement with A-stom Astana LLP to remove the remaining implants, build bone tissue and install new pins and prostheses, paying 3,305,000 tenge for this.
According to the results of the audit of the Department of defendant-1 in 2024, it was established that defendant-2 worked in dentistry ".Dent" without drawing up an employment contract. The facts stated in the complaint about the quality of medical care provided at the level of Sofi Dent LLP were considered justified by the members of the commission. The plaintiff filed a lawsuit with the court, subsequently clarifying it, indicating that Yu.I. He did not do the job well, the implants were not properly installed, not fixed, the prostheses did not fit, as a result of which she could not fully live, eat, laugh, experience discomfort, soreness, depression for 2 years.
As a result, in order to eliminate the work of Y.I.E., she bypassed many clinics, everywhere prices started from 6,000,000 tenge, as a result, she found A–stom Astana LLP, which she paid 305,000 thousand, as prices increased during the time.
Requests that the defendants jointly and severally recover the amount of material damage in the amount of 305,000 tenge, compensation for moral damage in the amount of 3,000,000 tenge, as well as reimburse the costs incurred in the case.
In court, the plaintiff and his representative supported the claims, presented the arguments of the claim in their explanations and asked the court to satisfy the claims in full. The representatives of the defendants did not recognize the claim, gave the court explanations identical to the response to the claim, and asked the court to dismiss the plaintiff's claims.
The defendant Yu.I. did not admit the claim in court, explained that he had done the work efficiently, his task was only to build up bone tissue (sinus lifting) and implantation. He didn't do any further work, and he has no idea who did it. As a surgeon, he did not give permission for the installation of prosthetics, as he did not see whether the implants had taken root or not. When R.Z.S. came to him in March 2023, he felt sorry for her and removed several implants so that the bone would heal, by whom the shapers were placed, and then the crowns themselves, he does not know. He asks you to refuse the demands on yourself.
The representative of the third party explained that in 2023, the authorized body had indeed initiated an audit of the activities of the LLP based on the plaintiff's application, expert Iskendirov M. was involved. In 2024, the audit took place, the facts indicated in the plaintiff's appeal were confirmed, as well as the fact that Yu.I. was working at Dent LLP without drawing up a labor contract. the contract, which is a violation. I left the decision on the case to the discretion of the court.
Specialist Mashyrykov E. K. explained the general rules of implantation and prosthetics, in particular, he explained that, depending on the patient's age and the condition of his bone tissue, the orthopedic surgeon decides whether to perform an open or closed sinus lift. The issue of removing the patient's teeth is decided by the patient himself. After the bone build-up, the installation of implants begins, which takes an average of 4 to 6 months to heal. There are shorter or longer implants. After their healing, a gum shaper is installed on the gum, where a prosthesis will be placed in a few weeks.
According to the provision of paragraph 1 of Article 917 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
By virtue of paragraphs 1 and 2 of Article 921 of the Civil Code, a legal entity or a citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. With regard to the provisions of this Code on obligations resulting from harm, employees are citizens who perform work on the basis of an employment contract, as well as on the basis of a civil law contract, if they acted or should have acted on the instructions and under the supervision of the relevant legal entity or citizen responsible for the safe conduct of work.
In accordance with the requirement of Article 947 of the Civil Code, damage caused to the life, health or property of a citizen or to the property of a legal entity as a result of constructive, prescription or other defects in the product (work, service), as well as due to unreliable or insufficient information about the product (work, service), is subject to compensation by the seller or manufacturer (performer), regardless of their guilt also depends on whether the victim was in a contractual relationship with them or not. This rule applies only in cases of purchase of goods (work, services) for consumer purposes.
The court found that the plaintiff applied to defendant -2, who worked for defendant -1, on his territory, to install the implants. According to the informative consents signed by plaintiff and defendant -2, the latter undertook to carry out sinus lifting and implantation of 7 pins.
The plaintiff did not give consent to tooth extraction, and defendant-2 did not accept such an obligation. However, the plaintiff's teeth in the amount of 9 pieces were removed. Further, after the completion of the denture installation stage and the beginning of their rejection, in March 2023, the plaintiff took a second 3D image, which was subsequently described by a dentist of the highest category on July 20, 2023: "The compact plate of the upper jaw is thinned.
The maxillary sinus is pneumatized. It is required to install an implant in the maxillary sinus area with a "sinus lift operation", which the implantologist did not do. The installed implants are not stable. Implants on the lower jaw are not installed correctly, since the installation of a cantilever prosthesis is contraindicated, taking into account the patient's age. Intact teeth were not removed correctly, although it was possible to leave several teeth among the (treated) teeth for natural support during implantation."
Similar descriptions are contained in the outpatient statement of A stom Astana LLP dated April 02, 2024, according to which, upon examination of the oral cavity and 3D discs, it was revealed that the patient had implants installed on the lower jaw in the area of 33,34,44,47 teeth exposed by 4 turns, in the area of 32,42 teeth exposed by 3 turns. The implants installed on the upper jaw in the area of 17,14, 25 teeth also have 3-4 turns of baring.
The implants are unstable and unsuitable for prosthetics. Thus, the court concludes that Defendant-2, while working for defendant-1, first performed, without the plaintiff's consent, the removal of her teeth, and then implantation and prosthetics of inadequate quality, which led to inflammation, suppuration and the need to remove the installed implants from the plaintiff's mouth, and subsequently the reinstallation of new implants.
At the same time, the court takes into account the description of M. Iskendirov, a dentist of the highest category, which he made during the inspection by the Department, because the Department involved him as a specialist.
Paragraphs 1 and 3 of Article 951 of the Civil Code establish that moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (suffered, experienced) by the victim as a result of an offense committed against him, and in the event of his death as a result of such an offense - by his close relatives, spouse.
Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage" (hereinafter referred to as the Regulatory Resolution) clarifies that moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal property belonging to him non-property benefits and rights.
Moral suffering (emotional and volitional experiences of a person) should be understood as feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. Physical suffering should be understood as the physical pain experienced by a citizen in connection with the commission of violence or harm to health.
The case materials established that the plaintiff applied to authorized bodies, to the prosecutor's office, to the court in an attempt to draw attention to her problem, for a long year she lived with a complete absence of a chewing apparatus, experienced discomfort, pain, moral and physical suffering. In view of this, the court finds the claim to recover compensation for moral damage from the person who caused it to defendant-2, as well as from defendant-1, who, without proper registration of the relationship, allowed and allowed defendant-2 to work, jointly and severally justified and subject to satisfaction. Regarding the amount of compensation, the court comes to the following conclusion.
Paragraph 8 of the Regulatory Resolution establishes that courts, when determining the amount of compensation for moral damage, must take into account both a citizen's subjective assessment of the severity of the moral or physical suffering caused to him, and objective data indicating this, in particular: the vital importance of personal non-property benefits and rights (life, health, freedom, inviolability of home, personal and family secrets, honor and dignity, etc.); the degree of moral or physical suffering experienced by the victim (deprivation of liberty, bodily injury, loss of close relatives, spouse, loss or disability, etc.); the form of guilt (intent, negligence) of the harm-doer, when it is necessary to compensate for moral harm.
Taking into account the established circumstances of the case, the court concludes, taking into account the principles of reasonableness and fairness, to reduce the claimed amount to one million tenge. In such circumstances, the claim to recover compensation for moral damage from the defendants is subject to partial satisfaction. By virtue of paragraph 4 of Article 9 of the Civil Code, a person whose right has been violated may demand full compensation for the losses caused to him, unless otherwise provided by legislative acts or a contract. Losses are expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property (real damage).
The fact that the defendants violated the plaintiff's right was established, however, during the consideration of the case, it was also established that defendant-1 returned the entire amount paid by the plaintiff to the plaintiff, which is also confirmed by the plaintiff. Choosing a different dentist, with different prices, was the plaintiff's right, as well as staying with the defendant and forcing him to redo the work for the amount paid in 2021-2022.
Thus, the court does not see any legal grounds for satisfying the claim for recovery of the difference between the amount originally paid and that which the plaintiff preferred to pay in a larger amount at another clinic. By virtue of part 1 of Article 109 and part 1 of Article 113 of the CPC, the costs associated with the payment of the representative's debt in the amount of 200,000 tenge and the payment of the state fee in the amount of 1,846 tenge, that is, 100,923 tenge each, are to be collected from the defendants in favor of the plaintiff.
Guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED:
The claim of Zinaida Stepanovna Reznichenko to the limited liability partnership ".Dent" and Yu.I.E. for damages should be partially satisfied. To recover from the limited liability partnership ".Dent" and Yu.I.E. in solidarity in favor of R.Z.S. moral damage in the amount of 1,000,000 (one million) tenge.
To collect from the limited liability partnership ".Dent" in favor of R.Z.S. court costs in the amount of 100,923 (one hundred thousand nine hundred and twenty-three) tenge. To collect from Yu.I.E. in favor of R.Z.S. court costs in the amount of 100,923 (one hundred thousand nine hundred and twenty-three) tenge.
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