Reprimand of a dentist for a dental implant treatment not performed lege artis; proportionality of the disciplinary measure

Facts

The appellant is a dentist and has held a licence to practise independently, valid for the whole of the Canton of St. Gallen, since 23 July 2004. On 9 September 2014, the Health Department of the Canton of St. Gallen received a supervisory complaint from a patient. The patient complained of problems with a denture on implants placed by him, and of chewing and speech difficulties.

The Health Department commissioned an expert. The expert concluded that the dentist had disregarded basic principles of oral implantology, placed implants 23 and 24 too close together and not lege artis, deviated from the diagnostic splint, issued an invoice that did not comply with the tariff, and did not adequately document the periodontal situation and the medical history in accordance with the SSO quality guidelines. In the course of the right to be heard, the dentist submitted his position and conceded that the points had never been disputed and that rework or partial re-planning was necessary; he argued that the patient's lack of compliance was deficient. The Cantonal Dentist and the follow-up treating dentist confirmed the expert's assessment, and the expert, after re-examination, maintained his conclusions.

On 23 August 2016, the Health Department opened disciplinary proceedings. By decision of 8 May 2017, it issued a reprimand on the ground that the dentist had breached the professional duty of conscientious practice and had violated the Medical Professions Act (MedPA). The appeal lodged against this on 22 May 2017 (supplemented on 26 July 2017), seeking annulment and waiver of any disciplinary measure, was dismissed by the Administrative Court of the Canton of St. Gallen, Division II, on 22 January 2019 (B 2017/103).

Before the Federal Supreme Court, the dentist requested that the lower court's judgment be set aside, or alternatively remitted. He alleged incorrect establishment of the facts, arbitrary assessment of the medical expert report, and incorrect application of the MedPA. The Federal Supreme Court requested the file and dispensed with a response. The subject matter of the dispute is the disciplinary measure (reprimand) under Art. 43 MedPA.

Considerations

The Federal Supreme Court held that the contested judgment was a final cantonal decision of the last instance in public law closing the proceedings and was subject to an appeal under public law (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 90 FSCA). The appellant was entitled to appeal under Art. 89 para. 1 FSCA, and the appeal was therefore admissible. The Federal Supreme Court is bound by the facts established by the lower court, unless they are manifestly incorrect or incomplete (Art. 105 para. 1 FSCA); complaints about the establishment of facts are subject to a qualified duty of substantiation (Art. 106 para. 2 FSCA).

On the assessment of evidence, the Federal Supreme Court held that expert reports serve to convey specialist knowledge, that technical questions are reserved for the expert and legal questions for the court. The court may not depart from an expert report without valid reasons; a departure is permissible only where the credibility of the report is seriously shaken. The standard applicable to medical expert reports in social insurance law must be modified for the assessment of dental treatment; what is decisive is the content of the report, not its designation. The Federal Supreme Court left open whether the statements of the Cantonal Dentist and the follow-up treating dentist had been accurately reproduced, since both shared the expert's view. The expert report answered the questions coherently, had examined the patient, evaluated the X-ray images and clearly identified the errors. The removal of quality levels A, B and C in the revised SSO guidelines did not alter the fact that the treatment was not performed lege artis. The lower court had therefore assessed the expert-established facts without arbitrariness.

Since the treatment was not performed lege artis, the dentist did not practise his profession conscientiously and diligently within the meaning of Art. 40 lit. a MedPA.

On the determination of the disciplinary measure under Art. 43 para. 1 MedPA (warning, reprimand, fine of up to CHF 20'000, temporary or permanent prohibition on practice), the Federal Supreme Court held that the measures primarily serve…