Aspects of Swiss Dental Law

Klaus Rötzscher (ed.)Forensic and Legal Dentistry201410.1007/978-3-319-01330-5_6

© Springer International Publishing Switzerland 2014

6. Aspects of Swiss Dental Law

Bernhard Knell1, 2  
(1)

Forensic Odontostomatology, Institute of Forensic Medicine, University of Zurich, Zurich, Switzerland
(2)

Forensic Dentistry, Center for Dental Medicine, University of Zurich, Zurich, Switzerland
 
 
Bernhard KnellDr. med. dent.
Abstract
The Constitution of the Swiss Confederation distinguishes in the 3rd Title, 2nd Chapter, 10th Section between Civil Law (Art. 1221), Criminal Law (Art. 1231), and Metrology (Art. 125).

The Constitution of the Swiss Confederation distinguishes in the 3rd Title, 2nd Chapter, 10th Section between Civil Law (Art. 1221), Criminal Law (Art. 1231), and Metrology (Art. 125).
Legislation in the field of civil law and civil procedural law is a federal matter. This also applies to criminal law and criminal procedural law. For the organization and the jurisdiction of the courts in civil cases, the cantons are responsible, unless the law indicates otherwise. In criminal law, the cantons also have jurisdiction for the organization and jurisdiction of the courts; in addition, it is responsible for the criminal and law enforcement measures, unless the law indicates otherwise.
On September 1, 2007, the new Federal Law on Medical Profession (MedBG) and on July 1, 2008 the new cantonal Health Act of the Canton of Zurich (GesG) including the new medical regulations (MedBV) came into effect replacing the existing ones.
The following list of topics is based largely on the Health Act (GesG) of the Canton of Zurich, fact sheets of the Association of Cantonal Dentists of Switzerland (VKZS), and the Vademecum “independent professional practice as a dentist/doctor in the Canton of Zurich” of the Health Department of the Canton of Zurich.

6.1 The Independent Dentist

The Swiss dentist is allowed to practice he/her profession based on a federal certificate of proficiency and a cantonal permit to practice. He/her is either in a self-employed freelancer position or works as an assistant to a professional dentist (mostly for postgraduate education or training), in a legal entity or private practice, for example, a dental center. For the unaffiliated practice, a license from the Cantonal Health Department is required. The cantonal permit is granted when the following conditions are met:

(a)

A Swiss federal or Swiss federally recognized foreign diploma
 
(b)

Trustworthiness
 
(c)

The physical and mental condition for the flawless fulfillment of the services offered
 
Permits for professional practice are granted for the period of 10 years. For professionals older than 70 years of age, the permits are limited to a maximum of 3 years.

6.2 Professional Obligations of Unaffiliated Dentists

The professional duties of a dentist are outlined in Article 40 MedBG. Since Article 40 MedBG includes general clauses requiring interpretation, the cantons remain relatively free within the framework set by the Federal Law to specify the following duties.

6.3 Duty of Care

The dentist is liable for any breach of due diligence on work performed. The dentist is generally per se not liable for the dangers and risks of his medical action or resulting ailments. His profession can entail risks for his patients, and for these cases, the Legal Liability Bill (BGE 120 lb 413 et seq.) can be implemented. Generally, the burden of proof for any liability rests with the patient.
The relationship between dentist and patient is of a private nature, and in Switzerland, it is part of the provisions of the Code of Obligations (Art. 394, et seq. (OR)). It therefore follows that the dentist is liable vis-à-vis the patient for diligent workmanship during the ordinary limited period of 10 years after completion of treatment.
Positively formulated: If the dentist performs his work carefully and according to Swiss standards, then there is no liability in case of failure of treatment.
For damage caused to the patient through improper dental treatment, the dentist is obligated to pay compensation. Therefore, the patient has to prove the breach of duty of care by the dentist and the causal connection between the infringement and the damage. On the other hand, the responsibility of the dentist is to provide possible exculpatory evidence to prove that he/her is not at fault (Raschein 1991).
To date, the Federal Court had not had to comment on the requirements concerning the duty of care in his professional practice, because in the few cases assessed there was no obvious violation of fundamental duties of care. The Federal Court has repeatedly expressed the importance of performing diligent services.
The principles developed for medical treatment apply mutatis mutandis to the dental treatment.
In a recent ruling (BGE 133 III 229, February 2007), the Federal Court extensively addressed the topic of the physician’s liability and the legal qualification of the doctor’s order: According to Article 398 para. 2 CO, the contractor (physician) is obligated to perform a careful and diligent service. It is the peculiarity of this profession that the doctor is obligated to work towards his goal in the best interest of his patient, which however does not mean that this set goal can be fulfilled or even guaranteed, as success as such is not the component of the doctor’s duty.
The scope of the medical duty of care depends on objective criteria. Each case must be taken on its own merits which include the type of intervention or treatment, the risks involved, the measure of discretion for possible treatment, the means and time that the physician has at his disposal, as well as his training and performance. The breach of duty, possibly a “malpractice,” legally means a nonperformance or poor performance of the contract. Should a patient suffer an injury and by fault of the doctor, then the patient is entitled to compensation. The burden of proof for any proceedings against the dentist lies with the injured party.
The importance of thorough and conscientious treatment is vital to avoid any possible malpractice suits. This includes practice infrastructure which allows the dentist to treat his patients with up-to-date standard in science and technology (§ 14 GesG). The infrastructure must be maintained and the processes of practice so designed that employees work under proper hygienic conditions (source: Vademecum Department of Health Canton of Zurich (GDZH)).
Duty of care also includes the knowledge of one’s own limits and capabilities. It also only allows one to carry out medical tasks for which one is trained. Further, the duties shall be confined to the dental field. According to the definition of § 20 MedBV, this includes all treatment of the masticatory system, taking into account the relationship to general diseases and health of the whole organism. Thus, should one have the appropriate skills, it is permitted to interact with acupuncture on body parts outside of the mouth and jaw area, provided this ultimately aids in the treatment of diseases of the masticatory system.
By contrast, for example, the injection of Botox or liposuction is prohibited. Also, the dispensing/prescribing of drugs must be limited to the standard in dentistry.
The issuing of prescriptions for other drugs (such as Dormicum) is prohibited, also for his own use (GDZH).
In the event of failure, the following procedure by the arbitral panels of Zurich has proven effective: Should a filling or crown fall out during the first 3 years after completion of treatment and one suspects this to have happened due to poor workmanship, then the work must be improved free of charge, redone, or the complete amount paid refunded.
After more than 3 years, the fault of the manufacturer is often no longer definable. The arbitration will usually decide on a pro rata refund of 10 % per year after completion of treatment (i.e., in the fourth year 60 % of the fee and in the ninth year 10 % of the fee) (Vademecum GDZH).

6.4 Further Education

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