Commercial relationship between a dental surgeon and a prosthetist?
This is the question answered by the Court of Cassation in a judgment of March 31, 2021.
Here is the context:
The commercial relationship:
A dental surgeon's office obtains dental prostheses from a laboratory for several years, before informing it of the immediate cessation of all collaboration.
The laboratory accuses the dental practice of abruptly breaking off the commercial relationship maintained for several years and is seeking damages.
It is based on thearticle L. 442-6-I-5° of the Commercial Code, in the version applicable at the time of termination of relations.
Firstly
I.-Incurs the responsibility of its author and obliges him to repair the damage caused by the fact, by any producer, trader, industrialist or person registered in the trade directory:
On the other hand, to suddenly break off the commercial relationship:
Even partially, a commercial relationship established, without written notice taking into account the duration of the commercial relationship and respecting the minimum period of notice determined, with reference to commercial practices, by interprofessional agreements.
When the commercial relationship concerns the supply of private label products, the minimum notice period is double that which would be applicable if the product was not supplied under private label.
In the absence of such agreements, orders from the Minister responsible for the economy may, for each category of products, set, taking into account commercial practices, a minimum notice period and regulate the conditions for termination of commercial relations, in particular by depending on their duration.
The preceding provisions do not preclude the right to terminate without notice, in the event of non-performance by the other party of its obligations or in the event of force majeure.
When the termination of the commercial relationship results from competition by remote auction, the minimum period of notice is double that resulting from the application of the provisions of this paragraph in cases where the duration of the initial notice is less six months, and at least one year in other cases.
According to this article, extracts above, “Incurs the responsibility of its author and obliges him to repair the damage caused by the fact, by any producer, trader, industrialist or person registered in the trade directory (…) of breaking suddenly, even partially, an established commercial relationship, without written notice taking into account the duration of the commercial relationship and respecting the minimum period of notice determined, with reference to commercial practices, by inter-professional agreements.
What does the court of appeal say?
The Court of Appeal considers that in this case, there was a commercial relationship between the prosthetist and the dental surgeons : the laboratory, manufacturer sold its products to the dental surgeons' office, which re-invoiced them in the execution of its services, generating a gross margin on these products.
The two companies, commercial in form, therefore carried out acts of commerce.
To the extent that any commercial relationship which concerns the supply of a product or service falls within the scope of application of Article L. 442-6-I-5° of the Commercial Code, the court of appeal considers that this article applies.
The sudden termination by dental surgeons of commercial relationships established over six years may therefore give rise to compensation for the prosthetist.
The Dental Office then appeals to the Court of Cassation.
What does the Court of Cassation say?
The commercial chamber of the Court of Cassation overturns the appeal judgment, by stop 31 March 2021.
She recalls that thearticle R. 4127-215 of the public health code sets out a clear principle: the dental profession should not be practiced as a business. Therefore, even under the status of SELARL, the performance of commercial acts consisting of ordering dental prostheses from the laboratory for the needs of its patients cannot suffice to establish the existence of commercial relations, within the meaning of article L. 442-6-I-5° of the commercial code, with the prosthetist.
No compensation is therefore due to the prosthetist for his damage resulting from the sudden termination of relations with the Dental Office.
A surprising decision
The reasoning adopted by the Court of Cassation differs radically from that of the Court of Appeal, and may seem surprising.
The court of appeal based itself solely on the nature of the relationship prosthetist dental surgeons, considered commercial since it consists of a purchase of a product with a view to resale as part of the provision of care.
The Court of Cassation based itself exclusively on an essential ethical rule which is binding on all dental surgeons, regardless of their mode of practice: the ban on practicing dentistry as a business.
It is on this prohibition that his entire reasoning is based: since dentistry cannot be exercised as a trade, then the contractual relations of the dental surgeon with another party cannot be described as commercial.
This single criterion is surprising since the ban on practicing dentistry as a business, even if it appears in the part of the public health code aimed at the “general duties of dental surgeons”, targets above all the practitioner/dentist relationship. patient.
Such reasoning ultimately amounts to prohibiting any partner of a dental surgeon from taking advantage of the provisions relating to the sudden termination of commercial relations, when they are at the initiative of the practitioner... whereas, conversely, if the rupture is the fault of the partner, the dental surgeon may request compensation…
sources: dental-surgeons-and-prosthetists-a-commercial-relationship
The Dental Surgeon makes a medical prescription for the creation of a prosthesis for his patient, in the same way that the doctor makes a medication prescription.
At this time there is no commercial approach yet.
So in reality the Dental Surgeon should make a medical prescription transmitted to the prosthesis laboratory for the creation of the prosthesis for his patient, in the same way as the doctor makes a medicinal prescription which is submitted to the pharmacist.
The dental surgeon should then resell the said prosthesis made to the patient without making a profit on it and simply detail the amount of the dental office's procedures and costs apart from the prosthesis (which is quite legitimate) which means that there is no trade in the prosthesis everything is indicated on Ameli with understanding the dental quote. (Ameli dental quote).
A STANDARD QUOTE DEVELOPED WITH DENTISTS
The estimate must be established in writing and include in particular:
- the description of the treatment envisaged and the materials used;
- the place of manufacture of the prosthesis;
- the amount of fees corresponding to the treatment;
- the amount reimbursed by Health Insurance;
- the basket of care to which each act belongs;
- an “alternative therapeutic information” section: for each procedure with an out-of-pocket cost, an alternative with no out-of-pocket cost must be offered to you (100% Health basket) or, failing that, with a moderate out-of-pocket cost.
These guarantees allow you to have all the useful information on the amount of the different offers available for your situation.
You can then send this quote to your complementary or mutual health insurance organization, which will inform you of the amount of coverage.
You will then be free to choose the alternative that best suits your situation.
the amount of fees corresponding to the treatment means that it is necessary to indicate the procedures carried out and their cost excluding the manufacture of the prosthesis which is purchased from the laboratory
Commercial practice therefore exists but between the laboratory and the patient not between the laboratory and the dental office.
The major concern is that laboratories should in this case receive medical prescriptions, prosthetists should only receive medical prescriptions for the manufacture of custom medical device.
Commercial practice therefore exists but between the laboratory and the patient not between the laboratory and the dental office.
In this case the patient should have the choice of the manufacturer of the said dental prosthesis and not be imposed by the practitioner (the doctor does not impose the choice of the pharmacy, the ophthalmologist does not impose the optician...).
The major concern is that laboratories should in this case receive medical prescriptions and not purchase orders, prosthetists should not accept purchase orders but medical prescriptions for the manufacture of custom medical device.
Dental surgeons should include purchases of prostheses as purchases for the patient since he orders and buys for the patient (I don't know if that's the case).
The Court of Cassation only applied the rule of ethics which states that the prohibition of trading in dental prostheses without taking into account more elements which were certainly not included in the debates.
Patients have the right to ask for details, as indicated on Ameli, and thus have the opportunity to see if there is a misused or hidden commercial practice of dental prostheses.
