Review of a claim for recovery of material damage and moral damage for improper provision of dental services
To the court No. 2 of Aktau city in the Manigistau region, Judge G.S. Sakhanova.
From The Defendant: Yu And Ye
IIN ..........
Almaty, 157A Suyunbaya ave., 24 sq.
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.
The plaintiff: RZS
IIN .......
Aktau, md. , d. , sq. 4.
8 701 ...
Review of the claim
on recovery of material damage and moral damage
You have a civil case against you, No. 4711-24-00-2/3819
dated 07/30/2024 on the claim of the Russian Federation (hereinafter referred to as the Plaintiff) to the United States (hereinafter referred to as the Defendant) for the recovery of material damage and moral damage.
Where the plaintiff asks the Court:
- to recover from S D LLP both Yu And E in solidarity in favor of the Republic of Kazakhstan the amount of material damage in the amount of 305,000 tenge.
- to collect compensation for moral damage in the amount of 3,000,000 tenge from the Legal Entity in favor of the Republic of Kazakhstan.
- collect from S Dent LLP both Yu and E in a shared manner in favor of the Republic of Kazakhstan the amount of the state duty in the amount of 33,050 tenge.
The plaintiff in his Claim argues that on October 25, 2021, the plaintiff applied to the dental clinic of S Dent LLP, located at the address: Aktau, MKR, house .
The plaintiff was interested in implantation. Yu E.I. advised her, who informed her about the possibility of implantation. as a one-time procedure (tooth extraction and pin insertion) so it is for the already empty seats. To further clarify the course of action, the plaintiff was sent to a panoramic 3D image. (photo 1)
After that, Reznichenko Z. On the one hand, Yu.Ye. and Yu. signed an informed consent for medical intervention, and Yun.Ye. performed bone tissue augmentation (according to him), for which 560,000 tenge was paid.
In March 2022, Defendant 2 removed 4 of the plaintiff's upper teeth, and placed 6 pins in some places. The payment was 960,000 tenge.
In May 2022, 5 more lower teeth were removed, and 7 implants were placed. Another 935,000 tenge was paid.
The above arguments of the Plaintiff partially agree on the following circumstances.
Thus, the Defendant joined the SDent 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 "SDent" (hereinafter referred to as the clinic) on 10/25/2021 in order to obtain information about treatment and implant placement – we disagree because, in fact, the Plaintiff went to the clinic much earlier in about August 2021, where dental technician Asgaraliev Bahlul Asgaraliogly accepted the Plaintiff and treated all the teeth, installed metal-ceramic crowns, which the Plaintiff categorically did not like, then dental technician A B.A. made the Plaintiff acrylic dentures, which later also did not like, from what 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 B.A. Asgaraliev 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 (presence of chronic diseases and, most importantly, hygiene);
2) Rational surgery;
3) Rational orthopedic treatment.
However, it turned out that the Plaintiff had misled the defendant that she did not have a chronic illness, whereas the Plaintiff in her first Claim, civil case No.4711-23-00-2/4510 dated 09/14/2023, wrote that she had chronic illnesses. If the patient has chronic diseases, then the Defendant did not recommend implantation.
The plaintiff asked for the provision of the Defendant: CT scan, 3D scan of the upper and lower jaw, blood test.
After studying the information provided and the CT scan, the 3D scan 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 was completed by the Defendant at this stage.
In July 2022, the head of the AB clinic fired me, and after that I opened my dental office by establishing D&A DT KK LLP.
After 4 months, at the end of February 2023, the Plaintiff and the head of the clinic, Asgaraliev 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 done 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 areas and contacts with cement.
Subsequently, a consultation was held with the Plaintiff, where the Defendant was recommended to remove the orthopedic structure resulting in complications (osteomilitis).
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 osteomyelitis and jaw fracture.
As a result of cement leakage from the orthopedic structure, destruction (complete resorption) of bone tissue occurred, which could lead to osteomyelitis 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 lower jaw implants. In addition, the Defendant had the infected bone tissue removed.
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, treated it.
After the work done, the Plaintiff came several times for examinations and the healing was very satisfactory.
Subsequently, the Defendant warned the Plaintiff that he was leaving the city and that it was necessary to remove stitches from any dentist.
The plaintiff in the Lawsuit argues that she contacted an expert, a Candidate of Medical Sciences, a dentist of the highest category and M.A. to obtain an opinion.
According to the expert, And M.A., makes a description of the 3D images of the patient P Z.S., to install the implant on the upper jaw in the maxillary sinus area, a sinus lifting operation is needed, which the implantologist has not done
- to which the Defendant explains that sinus lifting was not done as they were doing bone grafting and this was sufficient.
The expert and M.A. describe the installed implants as unstable. The 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
– To which the Defendant explains that he did not prostheticize the Plaintiff, the head of the clinic in the person of dental technician Asgaraliev B. prostheticized.
In addition, the Conclusion dated 07/20/2023 of the independent medical expert And M., according to the description of the 3-D pictures of the patient, is not correct, whereas the independent medical expert And M., is not a member of the Chamber of the Republican Chamber of Forensic Experts, which can be checked at the link https://rpse.kz /, does not have a license issued by an authorized state body to engage in expert activity;
I did not attach the confirmed Certificates to the conclusion. Thus, we believe that IM. is also not a specialist in the field of medicine, since evidence of employment and a Diploma of higher or secondary specialized education in the field of medicine were not attached.
The expert opinion submitted to the court by the Plaintiff's party dated 07/20/2023, No number, no examination of the subject of the study, M. Iskenderov, in accordance with art. 420 of the Criminal Code of the Republic of Kazakhstan has not been warned about criminal liability for knowingly giving a false conclusion, it is not numbered, laced or stamped by an expert or specialist, or if the conclusion is drawn up in electronic format or signed with an electronic digital signature of the expert, it is not indicated what work experience the expert has in the specified specialty, which Methodological manuals, Literature and etc., research methods are not specified, and what equipment and tools were used in the study are not indicated. Which contradicts art. 38, 39 Contents and Expert Opinions of the Law of the Republic of Kazakhstan On Forensic expertise.
In addition, the Defendant was not notified that the Plaintiff was conducting an independent medical expert, M. Iskenderov, an expert examination and or obtaining a specialist's opinion, whereas with proper notification by the Plaintiff of the Examination, the Defendant could have asked his questions, provided arguments and evidence for an objective study.
Article 9 of the Law of the Republic of Kazakhstan on Forensic Expertise provides for the comprehensiveness, completeness, objectivity and scientific validity of forensic expert research. In addition, the Law stipulates that when conducting a forensic examination, a forensic expert must take all measures for a comprehensive, complete and objective examination of objects based on special scientific knowledge. The expert's opinion should be based on provisions that make it possible to verify the validity and reliability of conclusions based on generally accepted scientific and practical data.
In addition, M., assuming himself as an expert or specialist in accordance with the Law of the Republic of Kazakhstan "On Forensic Expertise", has no right to rely on assumptions and/or unconfirmed possibilities without objectivity and scientific validity.
If cases of violations of legality are identified, the court has the right to issue and send a private ruling to the authorized body in accordance with art. 270 of the CPC RK.
In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.
The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
Accordingly, the Plaintiff's arguments on the examination are unacceptable and not relevant as evidence.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
The expert's opinion cannot serve as a basis for the satisfaction of the claim, since it does not disclose the essence of the dispute.
I would like to note for the court that the Defendant has video and photo recordings on the day of removal of the Plaintiff's orthopedic structures and, if necessary, will be provided in the attached version to the court or to an expert, specialist.
The video and X-ray of the Plaintiff were provided to a dentist specialist, in particular, a doctor with G.A. (Director of the clinic, consultant physician at New York University for Central Asia, unprofessional, irrational prosthetics were noted).
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.
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.
In addition, the Plaintiff paid all the money into the blade and the blade 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, represented by 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.
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 an Agreement on the provision of legal assistance No. 1909/24 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.
166 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that 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.
Based on the above and in accordance with art. 166 of the CPC RK,
I ask the Court:
· The Plaintiff's claims 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.
- Did everything take root after the implants were installed?
- Who had the teeth replaced?
- Is there any education in prosthetics, is there a work permit?
- Do you have a work permit?
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