Review of a claim for recovery of material damage and moral damage
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To the court No. 2 of Aktau city in the Manigistau region
Plaintiff: ....
IIN .....
8 701 ....
Aktau, md....
Respondent: Yu
IIN .....
Almaty, pr....
8 701 .....
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Review of the claim
on recovery of material damage and moral damage
You have a civil case No. 4711-23-00-2/4510 dated 09/14/2023 on the claim of R (hereinafter referred to as the Plaintiff) against Yu (hereinafter referred to as the Defendant) for the recovery of material damage and moral damage.
Where the plaintiff demands to recover from the Defendant in favor of the Plaintiff the amount of material damage in the amount of 2,500,000 tenge, and moral damage 500,000 tenge.
Thus, on 10/25/2021, the Plaintiff re-applied to the Dental Clinic "...." (hereinafter referred to as the clinic) in order to obtain information about the treatment and implant placement, the patient was dissatisfied with the prosthetics performed by the Dental Technician A.B., at the time of the consultation, there were metal-ceramic bridges and removable dentures in the ORTU, where the Plaintiff had a free surgeon, that is, the Defendant. Subsequently, the Defendant was recommended to take a picture of the jaws, collected their teeth, and sent for a blood test.
After studying the image, the defendant made a joint decision on the possibility of installing implants and set a time for treatment.
On 03/09/2022, the Defendant removed 4 teeth in the upper jaw with the installation of 6 implants, partially increasing the bone tissue, for which the Plaintiff paid the clinic 960,000 tenge.
On 05/20/2022, the defendant removed 5 lower jaw teeth from the plaintiff and installed 7 implants, for which the Plaintiff paid 935,000 tenge to the clinic.
In total, the Plaintiff paid 2,455,000 tenge to the clinic for 13 implants and work.
In October 2022, the time came for the Plaintiff to have prosthetics on implants, which was done by the clinic, namely by a dental technician who did not have a specialist's certificate, without higher education and without access to work with A.B.A. patients, and everything was fine. Just a few days later, the Plaintiff began to notice that food was getting under the crowns and it was impossible to remove it on her own.
As a result of the above, the Plaintiff repeatedly contacted the clinic and complained that the implants were not installed correctly. Dental implantation is a complex job, and with irrational prosthetics, even perfectly placed implants give rejection, the Defendant has a video – prosthetics on the implants were performed distractingly. It was performed for specialists who did not have sufficient education, a specialist's certificate (Admission to work with patients) by a dental technician A.B.
At that time, the Defendant was not working at the clinic, as the Plaintiff was informed that the Defendant had started working independently by establishing LLP ".." subsequently, the Plaintiff, at the end of February 2023, with the head of the clinic, Askaraliev B, came to the Defendant and after an examination, according to the Plaintiff's arguments, the Defendant promised to fix all the teeth, as can be testified by A.B. and the clinic technician A.M.
On March 28 and 29, 2023, the technician A.M. removed the crowns from the Plaintiff, for which there is a video recording of the removal of the crown and the subsequent prosthetics.
On 03/01/2023, the defendant removed 3 implants in his lower jaw and installed 2 implants in his lower jaw, free of charge.
On 03/16/2023, the Defendant asked to take a frame-by-frame picture of the jaws, which cost the Plaintiff 15,000 tenge.
On 03/28/2023, the Defendant removed 3 implants in the upper jaw from the Plaintiff and increased bone tissue.
On 03/30/2023, the Defendant removed the stitches and told the Plaintiff that internist Bisekeeva Makpal would take the pictures, who informed him that the Defendant had left for treatment. Subsequently, the Defendant allegedly did not pick up the phones and did not heal the Plaintiff.
In the previous half, the Plaintiff contacted other dental clinics and was informed that the implants were poorly installed and needed to be preserved, and the conclusion could not be issued and the treatment was two times more expensive, so after long negotiations with the clinic, the Plaintiff was refunded the money that she had paid for the wound and she had no claim on them.
The above arguments of the Plaintiff are partially unanimous, and the plaintiff's claims disagree on the following arguments.
Thus, the Defendant joined the Dental Clinic "..." (hereinafter referred to as the clinic) as a Surgeon in July 2019. Since that time, he has been serving the Clinic's clients.
The salary was determined from the work done, i.e. 30% of the amount paid by the patient with a minus for materials (implants, bone materials, etc.).
Regarding the Plaintiff's arguments that she applied to the Dental Clinic "....." (Hereinafter referred to as the clinic) on 10/25/2021 in order to obtain information about treatment and implant placement, we disagree, since in fact the Plaintiff applied to the clinic much earlier in about August 2021, where the dental technician A.B.A. he accepted the Plaintiff and treated all the teeth, installed metal-ceramic crowns, which the Plaintiff categorically did not like, then the dental technician A.B.A. made acrylic dentures for the Plaintiff, which later also did not work out, which caused a verbal conflict between the Plaintiff and the head of the Clinic because the Plaintiff did not like the work.
On 10/25/2021, during another visit to the Clinic with the Plaintiff's complaint, dental technician A.B.A. invited the Defendant to a consultation for the installation of implants, which would somehow resolve the conflict that occurred between them.
After the examination and medical history, the defendant provided a consultation where he highlighted 3 important points: The success of treatment with implants depends on patients: 1) The patient's state of health (the presence of chronic diseases and, most importantly, hygiene); 2) Rational surgery; 3) Rational orthopedic treatment.
However, it turned out that the Plaintiff had misled her into saying that she did not have a chronic illness, whereas the Plaintiff wrote in her Lawsuit that she had chronic illnesses. If the patient has chronic diseases, then the Defendant did not recommend implantation.
The plaintiff asked to provide the Defendant with: CT scans, 3D scans of the upper and lower jaw, and blood tests.
After studying the information provided and CT scans, 3D scans of the upper and lower jaw, I came to the conclusion that the implants can be installed. Next, the Defendant and the Plaintiff drew up a treatment plan and set a day and time for dental implantation.
On 10/30/2021, the Defendant carried out work on the bone grafting of the upper jaw, for which the Plaintiff paid the Clinic funds in the amount of 560,000 tenge, subsequently it took time to integrate the bone.
On 03/09/2022, according to the agreed treatment plan, the Defendant removed 4 teeth in the upper jaw with the installation of 6 implants, with partial bone grafting, for which the Plaintiff paid the clinic 960,000 tenge.
According to the agreed treatment plan, on 05/20/2022, the Defendant removed 5 lower jaw teeth from the Plaintiff and installed 7 implants, for which the Plaintiff paid 935,000 tenge to the clinic.
An implant is an artificial root that is inserted into the bone.
The field of installation and healing of the above-mentioned implants, my work at this stage was completed.
In July 2022, the head of the clinic, A.B., fired me, and after that I opened my dental office by establishing LLP "...".
After 4 months, at the end of February 2023, the Plaintiff and the head of the clinic, A.B., came to the Defendant complaining of pain, difficulty opening the mouth, the smell of rot, lack of aesthetics, inability to eat, and after an objective examination of the Plaintiff's mouth area, the Defendant saw that the oral mucosa was hyperimated, swollen, under the prosthesis there were remnants of urine, purulent discharge, palpation was painful, orthopedic construction was not performed rationally, not qualitatively, X-ray implants are adequate, The effect of the adhesive cement on the body of the implants is determined, as well as partial bone resorption in the areas and contacts with the cement.
Subsequently, a consultation was held with the Plaintiff, where the Defendant was recommended to remove the orthopedic structure resulting in complications (osteomilitis).
In accordance with Article 44 of the Civil Code of the Republic of Kazakhstan, Liability of a legal entity stipulates that legal entities are liable for their obligations with all their property.
Having a civil position working in another clinic, the Defendant provided assistance to the Plaintiff free of charge, thereby protecting the patient from serious complications of osteomelitis and jaw fracture.
As a result of cement leakage from the orthopedic structure, destruction (complete resorption) of bone tissue occurred, which could lead to osteomelitis and pathological fracture of the jaw.
At the request of the patient and the head of the clinic, the defendant, purely out of human motives, as a former employee, free of charge,
On March 28 and 29, 2023, with assistant A.M., I removed the crowns from the Plaintiff.
Subsequently, the Defendant removed 3 implants on the lower jaw and installed 2 implants on the lower jaw as it was not recommended to install a third implant. In addition, the Defendant removed the infected bone tissue and gilded new bone material.
After the above services, the Defendant asked to take a reframe picture of the jaws.
The Defendant also removed 3 implants in the upper jaw from the Plaintiff and removed the infected bone tissue, processed and laid a new bone matrix.
After the work done, the Plaintiff came several times for examinations and the healing was very satisfactory.
Subsequently, the Defendant warned that he was leaving the city and that it was necessary to remove stitches from the therapist of the B.M. Clinic on the 10th day and that the pictures would be taken by the therapist of B.M..
According to the expert, Candidate of Medical Sciences, dentist of the highest category I.M.A., at the time of implantation, there were no intact teeth, all teeth were ground into a ceramic structure by dental technician A.B., the patient was not fitted with a prosthesis, and at her urgent request, the roots of the teeth were removed, the stumps were not subject to restoration, natural supports are not possible. A conflict arose with A.B., after which preparations for implantation began.
According to the expert's conclusion, a Ph.D. dentist of the highest category, I.M.A., makes a description of 3D images of the patient, R.Z.S., to install an implant on the upper jaw in the maxillary sinus area, sinus lifting surgery is needed, which the implantologist did not do. The defendant explained that sinus lifting was not done because bone grafting was done and this was sufficient.
According to the Plaintiff's arguments, the candidate of Medical Sciences, dentist of the highest category, I.M.A., describes that the implants were not installed stably at the time of the current 3D image.
According to the Plaintiff's arguments, the Ph.D. dentist of the highest category, I.M.A., describes the Implants on the lower jaw as being installed incorrectly, since the installation of a cantilever prosthesis is contraindicated, taking into account the patient's age. To which the Analyst explains that he did not predict the Plaintiff, the head of the clinic, represented by dental technician A.B., provided prosthetics.
I would like to note for the court that both the Defendant have video and photo recordings on the day of removal of the Plaintiff's orthopedic structures, which, if necessary, will be provided in the attached version to the court or by an expert to specialists, the video and X-ray were provided by a specialist dentist, in particular, Dr. S.G.A. (Director of the clinic, consultant physician at New York University for Central Asia, it was noted unprofessional, irrational prosthetics).
In addition, the Defendant holds a Doctor of Medical Sciences degree, which he defended in the Czech Republic in Prague, Health and Accreditation of the European Association of Universities, received awards from the Kazakhstan Association of Dentists, and led the branches of the Kazakhstan Association of Dentists.
Article 68 of the CPC RK. The "Assessment of Evidence" reads as follows:
The evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve the civil case. In this civil case, we observe that the evidence provided is unreasonable.
In addition, the Plaintiff paid all the money to Klink and Klink also returned to the Plaintiff the full amount paid by the plaintiff. Accordingly, we consider that in this civil case there is a need to replace an improper defendant with a proper defendant. In accordance with art. 50.of the Civil Procedure Code of the Republic of Kazakhstan, where it is stipulated that Replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one. According to the totality of the data obtained, the claim should be filed against the clinic in which two non-rational stages of prosthetics were performed, by a dental technician A.B., who does not have sufficient education and does not have the right to work with patients.
If the plaintiff does not agree to replace the improper defendant with a proper defendant, the court considers and resolves the case according to the claim.
Article 72 of the CPC RK. The "Duty of Proof" provides for
Each party must prove the circumstances to which it refers as the basis of its claims, which is not observed in the statement of claim.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it.
On 09/19/2023, in order to obtain legal advice and further provide services in the court of first instance, the Defendant turned to the Law and Law Law Firm, where a Contract for the provision of legal services No. 1909/20 dated 09/19/2023 was drawn up and funds in the amount of 500,000 tenge were paid to the office, as evidenced by the receipt and contract.
113 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party (payment orders, fiscal receipt). For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.
Based on the above and in accordance with art. 166 of the CPC RK,
I ask the Court:
The Plaintiff's claim against the Defendant for recovery of material damage and moral damage must be denied.
In case of refusal to satisfy the Claim, to recover from the Plaintiff in favor of the Defendant representative expenses in the amount of 500,000 tenge.
With respect,
Proxy Representative lawyer:
______________/Sarzhanov G.T.
"___" ___________ 2023 the year
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
