Legal dispute over the quality of medical care provided for the installation of implants
On February 12, 2025, No. 4799-24-00-2a/1263 Judicial Board for Civil Cases of the Mangystau regional in the chairman Bakytzhanova G.K.,– chairman of the board judge: Komarova N.Yu., Sagyndykova K.K., board with the participation of a representative of the plaintiff E.S.L., a representative of the defendants E. D.V., Sarzhanova G.T., F.I.I. Having considered in open court using audio-video recording and via the WhatsApp mobile application, the electronic civil case on the claim of R.Z.S. against the limited liability company.Dent, Yu.I.E. on compensation for damage received on appeals from representatives of the defendants against the decision of the court No. 2 of Aktau, Mangystau region, dated November 11, 2024,
On October 25, 2021, R.Z.S. applied to the dental clinic ".Dent" for implantation. The plaintiff was advised by a dental surgeon at the clinic, Yu. I.E. On the same day, a 3D snapshot of the plaintiff's mouth was taken. On October 29, 2021, the plaintiff and Yu.I.E. signed an informed consent to perform a "sinus lift" for the plaintiff, since the plaintiff's available bone mass was insufficient to carry out the implantation, and then bone grafting of the upper jaw was performed.
R.Z.S. paid funds in the amount of 560,000 tenge to the clinic's cash desk. On March 9, 2022, defendant Yu.I.E. removed 4 teeth in the plaintiff's upper jaw with the installation of 6 implants, for which the plaintiff made a payment of 960,000 tenge to the clinic's cashier. On May 20, 2022, defendant Y.I.E. removed 5 teeth of the plaintiff's lower jaw and installed 7 implants, for which the plaintiff paid 935,000 tenge.
In March 2023, the plaintiff applied to the dental clinic ".Dent" with complaints of swollen gums, bleeding, stench, inability to chew food normally, food getting stuck between the crown and gum, soreness. At the specified time, i.e. in March 2023, the defendant Yu.I.E. worked at another clinic at Aktau, 7 microdistrict, where the plaintiff applied.
Defendant Yu.I.E. removed the crowns and removed 3 implants on the plaintiff's lower jaw. After that, the defendant Y.I.E. moved out of the city. On March 4, 2023, the dental clinic "S.Dent" in the person of A.M., the amount paid by her in the amount of 3,010,000 tenge was returned to the plaintiff, which is confirmed by written receipts from the plaintiff dated 03/04/2023 and 06/12/2023.
In June 2023, plaintiff R.Z.S. 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) and requested 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 as a specialist for an independent examination.
By letter dated August 9, 2023, the Department informed the plaintiff that it was impossible to conduct an inspection, due to the fact that the clinic was closed at every visit by Department employees. On November 3, 2023, the plaintiff entered into an agreement with .-stom. LLP to remove the remaining implants, build bone tissue and install new pins and prostheses, paying an amount of 3,305,000 tenge for these services.
According to the results of the audit of the Department of ".Dent" LLP in 2024, it was established that the defendant Yu.I.E. worked at the dental clinic ".Dent" without drawing up an employment contract. The facts stated in the complaint about the quality of medical care provided at the level of ".Dent" LLP were assessed by the members of the commission as justified. In the conclusion of the independent medical expert I.M.A., dated July 20, 2023, who conducted a description of the 3D images of the plaintiff, the following descriptions are made:
1). "The compact plate of the upper jaw is refined. The maxillary sinus is pneumatized.
It is required to install an implant in the maxillary sinus area "sinus lifting operation", which the implantologist Yun I.E. did not do. The installed implants are not stable.
2). Implants on the lower jaw are installed incorrectly, since the installation of a cantilever prosthesis is contraindicated, taking into account the patient's age.
3). Intact teeth were removed incorrectly, although it was possible to leave several teeth among the teeth (treated) for natural support during implantation." In the outpatient statement of R. Z. dated 04/02/2024 by the doctor of the dental clinic of LLP ". Astana" Zh.B.S. it is indicated that upon visual examination of the patient's oral cavity and 3D images (discs), it was revealed that the patient had implants installed on her 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 14,17,25 also have 3-4 turns of baring. The implants are not stable and are not suitable for prosthetics.
The plaintiff, R.Z., filed a lawsuit with the court, subsequently clarifying it, pointing out that Yu. I.E. performed the work poorly, the implants were not properly installed, not screwed up, the prostheses did not fit, as a result of which she could not fully live, eat, laugh, experience discomfort, soreness, and depression for two years. As a result, to eliminate Yun Yi's work.
I visited many clinics, everywhere prices started from 6,000,000 tenge, I found an LLP. "Astana", which was paid an additional 305,000 thousand, as prices have increased over time. She asked to recover from the defendants ". Dent" LLP and Yu.I.E. in solidarity the amount of material damage in the amount of 305,000 tenge, compensation for moral damage in the amount of 3,000,000 tenge. By the decision of the Aktau City Court No. 2 dated November 11, 2024, the claim was partially satisfied.
The court decided: "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." Disagreeing with the court's decision, the representative of the defendant LLP".Dent filed an appeal in which it asked to change the decision of the court of first instance and to dismiss the claim regarding the recovery of the amount of moral damage from .Dent LLP, which is not a proper defendant.
The rest of the court's decision was asked to remain unchanged. In the appeal, the representative of the defendant Yu.I.E. asked to change the decision of the court of first instance and to dismiss the claim regarding the recovery of the amount of moral damage from the defendant Yu.I.E. After listening to the participants in the process, having studied the case materials, the court of appeal comes to the following conclusion:
By virtue of the requirements of part 1 of Article 413 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC), when considering a case on appeal, the court verifies the legality and validity of the decision of the court of first instance in full.
According to Part 1 of Article 427 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for revoking or changing a court decision on appeal are: 1) incorrect definition and clarification of the range of circumstances relevant to the case; 2) lack of evidence of circumstances relevant to the case established by the court of first instance; 3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case; 4) violation or improper application of substantive or procedural law; 5) there is no protocol of a separate procedural action in the case, when the obligation to conduct it is provided for by this Code. Such violations were committed by the court of first instance when considering this dispute.
According to 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 the requirements of Article 951 of the Civil Code, 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 (endured, experienced) 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.
The court of first instance, having established that the plaintiff, in order to install the implants, turned to the defendant Yu.I.E., who worked at the dental clinic. Dent, who performed 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 to reinstall new implants, concluded that it was necessary recovery of the amount of compensation for moral damage from both defendants in solidarity, since the defendant Yu.I.E. he is the direct causer of harm, and the second defendant, Sofi Dent LLP, must also be responsible for causing moral harm, since, without proper registration of the relationship, he allowed and allowed defendant Yu.I.E. to work. In the opinion of the court of appeal, the court's conclusions regarding bringing Sofi Dent LLP to joint responsibility are unfounded on the following grounds.
As follows from the case file, the plaintiff Reznichenko Z. In October 2021, she applied to the Sofi Dent dental clinic for implantation, at that time this clinic belonged to the individual entrepreneur A.G.A. According to the case file, LLP.Dent" BEAN . It was registered as a legal entity on March 14, 2023, which is confirmed by a certificate from the authorized body on the state registration of this legal entity. The above indicates that at the time of the plaintiff's application to the dental clinic. "Dent" and the provision of medical services to her by the defendant Yu.I.E., LLP. "Dent" did not exist as a legal entity.
In such circumstances, the judicial board considers that the court of first instance is TOO. "Dent" was unreasonably held jointly and severally liable In this regard, the amount of compensation for moral damage is subject to recovery only from the defendant Yu.I.E., since in this case the causer of moral damage is this defendant and it is he who must compensate him.
During the consideration of the case, it was reliably established that as a result of poor-quality provision of implantation services by the defendant Yu.I.V., the plaintiff R.Z. was deprived of the opportunity to live normally, lived for a long time with a complete absence of a chewing apparatus, experienced discomfort, pain, moral and physical suffering. At the same time, according to the judicial board, the amount of monetary compensation for moral damage in the amount of 1,000,000 tenge was determined correctly by the court, taking into account all the circumstances of the incident.
There are no legal grounds for changing the amount to decrease or increase it. The court of appeal agrees with the court's decision regarding the refusal to satisfy the plaintiff's claim for recovery of material damage in the amount of 305,000 tenge, since there are no 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. Taking into account the above, the decision adopted by the court of first instance is subject to change.
The court's decision regarding the recovery of compensation for moral damage in solidarity with the LLP. "Dent" is subject to cancellation with the adoption of a new decision in this part to dismiss the claim. In accordance with Article 109,113 of the CPC, the amount of court costs for the payment of the representative's assistance and state duty collected from the defendant Yu.I.E. is subject to increase to 201,846 tenge. Based on the above, the appeal of the representative of the defendant LLP ".Dent" is subject to satisfaction, the appeal of the representative of the defendant Yu.I.E. is subject to dismissal.
Guided by subparagraph 2) in part 1 of Article 424, Article 426 of THE CPC, the judicial board DECIDED: To change the decision of the court No. 2 of Aktau, Mangystau region, dated November 11, 2024. The court's decision regarding satisfaction of the claim for compensation for moral damage and recovery of court costs from the limited liability company ".Dent" to cancel and in this part to make a new decision to dismiss the claim.
To increase the amount of court costs collected from Yu.I.E. in favor of R.Z.S. to 201,846 (two hundred one thousand eight hundred forty-six) tenge. The rest of the court's decision should remain unchanged. To satisfy the appeal of the representative of the limited liability company "S.Dent". The appeal of the representative of Yu.I.E. should be dismissed. The resolution comes into legal force from the moment of its announcement.
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