One of the key tasks of the National Healthcare Project, set by the Government of the Russian Federation, is the formation of a system for protecting the rights of patients. Any citizen of the Russian Federation possesses invaluable non-property benefits (life, health, personal dignity, physical integrity, etc.), the adverse effects on which, during or as a result of dental treatment, may cause moral suffering. According to the definition in paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 20.12.1994 No.10 “Some Issues of Application of Legislation on Compensation for Moral Harm,” moral harm in poor-quality dental care may consist in moral worries due to aesthetic defects, inability to continue a socially active life, loss of work or physical pain associated with the treatment process or the results of treatment, as well as with a disease related to moral suffering, etc.

Typically, medical dental care is a complex set of measures, including preventive, therapeutic, and diagnostic components of its medical services; their features are intangibility, immateriality, heterogeneity, and an inseparable connection with a person as an object of direct impact. It is generally known that any dental manipulations, in accordance with the federal law dated 21.11.2011 No.323 “On the basics of health protection in the Russian Federation,” are carried out only after informing the patient about possible adverse consequences and complications. However, as a matter of law, the signing of an informed voluntary consent (IVC) for medical intervention cannot serve as an exemption from civil liability in the case of culpable actions of healthcare professionals, since in case of harm to health, delictual (non-contractual) liability occurs, not due to the will of the parties to the contract, but on the grounds set in the law of the Russian Federation [1].

The analysis of judicial practice in dental cases showed a wide range of court-awarded compensation amounts for moral harm [2]. Often patients who have used and continue to use dental prostheses for many years after forensic examinations are awarded compensation for moral suffering, which is hundreds of times higher than payments to patients in need of restorative bone-plastic surgery to eliminate the consequences of poor-quality medical care.

The very concept of “moral suffering” has a relatively broad interpretation, and there are no special indicators with clearly defined objective evaluation criteria for its characterization. Lawyers have repeatedly discussed the need to adopt a normative document that would regulate the determination of the amount of compensation for moral harm and provide a proper legal assessment of the moral suffering of patients [3–5]. To date, however, there is no such legal act, and the courts determine the amount of compensation for moral harm caused to the patient (or his relatives) individually based on the degree of guilt of the medical organization, the degree of proof of the patient’s physical and moral suffering caused by poor-quality dental care, as well as the following factors:

— circumstances of pre-trial proceedings;

— the existence of objective evidence of moral harm;

— the presence of an indirect or direct causal relationship between the actions of healthcare professionals and those violations in the provision of medical care that caused suffering to the patient/their relative [1, 2].

On the part of the legal community, proposals have been made to resolve this issue by, for instance, designating both minimum values of amounts in accordance with the severity of the harm and certain scale-up factors that take into account the form of guilt of the harm doer [5].

Currently, according to Article 1101 of the Civil Code of the Russian Federation, the amount of compensation for moral harm is always determined by the court “within the limits of the discretion granted to it by law” (determination of the Constitutional Court of the Russian Federation of July 15, 2004, No.276-O) and does not depend on the amount of compensation for property damage, which is especially important for dentistry, since cases of poor-quality care in dentistry or maxillofacial surgery are often considered within the state program of free medical care (under the Obligatory Medical Insurance [OMI]). Some authors [3, 4, 6] reported trends to the significant underestimation by courts of the amount of compensation for moral harm requested by patients. However, there are no official data on this issue, and one can only discuss the lack of established court practice in cases involving poor-quality dental care, the lack of uniformity, the complexity of proof, and an objective assessment of the moral harm [1, 2, 5].

The objective of this study is to perform a comparative analysis of data related to the compensation for moral harm caused by poor-quality dental care and to determine the main “reference points,” benchmarks, and stable trends in the individual assessment of the amounts of compensation awarded by the courts.

During the study, more than 2,500 cases of general jurisdiction courts of the Russian Federation concerning poor-quality medical care in dentistry and maxillofacial surgery were reviewed over 10 years (from 2013 to 2022). We selected 1,731 cases (including appeal and cassation decisions on the same cases) publicly available in the databases of judicial acts, court decisions, and normative documents. A cumulative analysis was conducted by study year and in comparison over five-year periods from 2013 to 2017 and from 2018 to 2022. Overall data were calculated for 1,731 cases; only cases containing information on the absolute values of compensation for moral harm were included in the calculation of financial indicators (960 cases for the period from 2013 to 2022).

Results and discussion

Statistical data analysis of claims for moral harm compensation of citizens shows that “Dentistry” and “Maxillofacial surgery” are types of medical care associated with the possibility of causing moral suffering for the patient. According to our study, from 2013 to 2022, claims for moral harm compensation contained 97% of cases (1680 out of 1731) related to poor-quality dental care. The values of this index by the study years ranged from 94 to 100%; there was a minor difference between the maximum and minimum values for all study years (less than 6%) (Table 1). The percentage of court cases with satisfied claims for moral harm compensation gradually increased.

Table 1. Percentage ratio of the share of court cases containing claims for compensation for moral damage (2013—2022)

On average, over the 10 years, 56% of patients’ claims for compensation for moral suffering due to poor-quality medical care in dentistry and maxillofacial surgery were satisfied; however, there is an upward trend in the proportion of satisfied claims from 2020. The increase rate from 2013–2014 to 2021–2022 was 36%. It is impossible to reliably assess the effect of the new coronavirus infection on the organization of medical care for “Dentistry” and “Maxillofacial surgery” profiles, the indices change in 2020 and lack of proper follow-up of orthodontic patients, as well as on the increase in the timing of orthopedic dental care and the conversion of maxillofacial in-patient surgery units.

Analysis of the obtained statistical data shows that the mean amounts of compensation for moral harm claimed by patients and the amounts of payments awarded by the courts in cases involving poor-quality dental care have changed slightly over the study period (within the limits of inflation). The mean amounts claimed by patients were 318,000 rubles in 2013–2017 and 340,000 rubles in 2018–2022. However, there was a rapid rise in claimed compensation for moral harm in 2020 (Table 2). The mean payment for the entire study period was 46,000 rubles.

Table 2. Average values of non-pecuniary damage compensation requested by patients and determined by courts in 2013—2022

However, the analysis of mean values does not fully reflect the issue concerning these compensatory payments since it provides only the general characteristic of the variable, without individual differences. Changes in the claimed amounts by study year are shown in Figure 1. The proportion of cases in which the amounts of compensation for moral suffering claimed by patients does not exceed 100,000 rubles is decreasing. The proportion of cases with claimed compensation amounts from 100,000 to 500,000 rubles and from 500,000 rubles to 1,000,000 rubles is increasing. In 2022, the proportion of such cases was 65%, which is significantly higher than in the study beginning — in 2013, when the proportion was 45%. Thus, the increase rate was 49% over 10 years, as illustrated in Figure 1.

Fig. 1. Dynamics of the distribution of cases by the size of the requested compensation for moral damage (2013—2022).

The amount of actual court-awarded compensation for moral harm in dental cases varies considerably. The courts usually consider the harm caused to the patient’s health when making their decision. According to the table of percentages of loss of earning capacity due to various injuries, poisonings, and other external causes, approved by order of the Ministry of Health and Social Development of the Russian Federation dated 24.04.2008 No.194n, a correlation dependence of the percentage of loss of earning capacity with the number of lost intact teeth is established. Thus, this percentage is 5% for losing 2–3 teeth, 10% for 4–6, 20% for 7–10, and 25% for losing 11 or more intact teeth.

Loss of a tooth in case of its fracture or crown fracture is equal to tooth loss. The loss of a temporary (baby) tooth corresponds to the loss of a permanent one only if the primordium of the permanent tooth has been damaged and the dentition defect will not be replaced with a permanent tooth over time.

The absence of a part of the upper or lower jaw is estimated to be 40% of the permanent loss of earning capacity (however, the atrophy (absence) of the alveolar process of the jaws cannot be assessed in the same way, for instance, after implant removal due to peri-implantitis). Masticatory dysfunction due to a fracture of the upper or lower jaws with impaired occlusal contacts and dental bite may correspond to 10% in moderate bite disorders, 15% in significant bite disorders, and 20% of permanent loss of earning capacity in severe bite disorders, jaw deformities and difficulties in opening the mouth.

In addition, the period of loss of earning capacity is always essential for forensic experts and the court: temporary impairment of the functions of organs and systems for up to 21 days is a medical criterion for slight injury to health, and a long-term disorder — more than 21 days — corresponds to a moderate injury to health.

When assessing the moral harm caused to the patient, the court takes into account not only the nature of physical suffering but also the factual circumstances of the case, the degree of guilt of the doctor, the individual characteristics of the patient, the limitation period and other factors indicating the severity of the moral suffering, which the plaintiff can justify and prove.

During our study, the amounts of compensation for moral harm awarded by the courts in cases involving poor-quality dental care ranged from 500 rubles to 2 million rubles over 10 years (Fig. 2).

Fig. 2. Dynamics of the distribution of cases by the size of compensation payments for moral damage appointed by the courts (2013—2022).

While the payments may have varied from year to year, there is generally a consistent upward trend. The proportion of court decisions with the payment of compensation for moral harm from 100 to 500 thousand rubles increased by 44% over 10 years.

During the study, the prominence index of change over 10 years was calculated for the number of cases in which the claims for compensation for moral harm were more than 100 thousand rubles. The proportion of all cases in 2013–2014, where the compensation for moral harm claimed by the plaintiffs was more than 100 thousand rubles, was taken as a reporting unit (100%), and the change of the proportion was calculated over later years in relation to 2013–2014. The same prominence index was calculated in cases where the courts determined compensation for moral harm of more than 100 thousand rubles (the proportion of all cases with such a size of claims in 2013–2014 was taken as a reporting unit) (Fig. 3). Fig. 3 shows that the proportion of cases with claimed compensation for moral harm more than 100 thousand rubles increased by 10% over 10 years; however, the index characterizing the proportion of cases where the actual payments were more than 100 thousand rubles increased more than twice over 10 years (by 110%).ore

Fig. 3. Indicator of the visibility of the change in the proportion of cases with the requested claims for compensation for moral damage (CMV) of more than 100,000 rubles and CMV paid by medical organizations of more than 100,000 rubles (2013—2022).

Data analysis shows the deviations in 2019–2020, which, according to the authors, are due to the epidemiological situation and the new coronavirus infection.

During the study, all the grounds for claims for moral harm compensation were determined in the claim statements with the calculation of the mean error of the arithmetic mean (standard error of the mean) to assess the reliability of the results (Table 3). The data obtained show that most often, patients justified their claims for compensation for moral harm by the inability to use the result of the service, physical suffering, and pain, as well as changes in the psycho-emotional state due to poor-quality care; these grounds were found in 46.1, 45.4, and 45.0% of all claims, respectively.

Table 3. Structure of the main reasons for making claims for compensation for moral damage in 2013—2022 (1731 cases)

Conclusion

The study identified the most important and typical trends in the judicial practice on dental cases regarding patients' claims for compensation for moral harm. Such compensation is claimed in 97% of cases, and the rate did not change significantly during the study period.

On average, 56% of the cases are satisfied by the courts; however, the rate of such cases increased by 36% over 10 years.

There is a tendency to increase the claimed amounts of compensation for moral suffering. The claims with amount of compensation from 100 to 500 thousand rubles increased by 49% over 10 years.

An upward trend in the proportion of cases with compensation payments exceeding 100 thousand rubles was observed (44% over the study period).

To date, the methodology for determining the degree of the patient’s moral suffering and correlating it with material compensation for correct and uniform application in judicial proceedings has not been determined. In addition, there is no clear understanding of what can serve as objective evidence of the existence and severity of moral suffering.

The data obtained during the study justify the need for careful maintenance of medical documents and contractual relations with the patient. The provision of dental care involves the physical impact of a damaging nature that causes pain (for instance, when preparing teeth for dental prostheses). In addition, doctors are not able to predict with a high degree of probability the patient’s response to the impact (adaptation, allergic reactions, intolerance to materials, etc.). However, competent registration of the relationship between the medical organization and the patient in the form of contracts and voluntary informed consent for medical intervention and adequate maintenance of medical records can ensure the regulation of mutual responsibility of the parties and the limits of possible responsibility of medical organizations.

The authors declare no conflict of interests.