Marko v Falk - [2008] NSWCA 293

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Marko v Falk [2008] NSWCA 293

FILE NUMBER(S):
40072/07

HEARING DATE(S):
13/5/08

JUDGMENT DATE:
10 November 2008

PARTIES:
Olivia Marko (Appellant)
Gregory Falk (Respondent)

JUDGMENT OF:
McColl JA Campbell JA Bell JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
20306/04

LOWER COURT JUDICIAL OFFICER:
Hislop J

LOWER COURT DATE OF DECISION:
25/1/07

COUNSEL:
Mr M Neil QC / Mr CK Stewart (Appellant)
P Menzies QC / Ms K Burke (Respondent)

SOLICITORS:
Margiotta (Appellant)
Trescox (Respondent)

CATCHWORDS:
TORT - Medical negligence - Endoscopic surgery - Bolam principle - distinction between diagnosis and treatment, and warning of risks
res ipsa loquitur

LEGISLATION CITED:
Civil Liability Act 2002

CATEGORY:
Principal judgment

CASES CITED:
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310
F v R (1983) 33 SASR 189
Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Mahon v Osborne [1939] 2 KB 14
Marko v Falk [2007] NSWSC 14
Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

TEXTS CITED:
Professor P B Cotton, Practical Gastrointestinal Endoscopy, (4th ed 1996)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No: 40072/07
SC No: 20306/04
McCOLL JA
CAMPBELL JA
BELL JA
Monday 10 November 2008

OLIVIA MARKO v GREGORY FALK

Judgment

McCOLL JA: The appellant, Olivia Marko, brought proceedings to recover damages against the respondent, Dr Gregory Falk, a surgeon specialising as an upper gastrointestinal surgeon endoscopist, alleging he had been negligent and in breach of contract in performing a procedure known as an upper endoscopy (gastroscopy) on her. The respondent located a sessile polyp in the appellant’s duodenum (the first portion of the small intestine) during the endoscopic examination and removed it piecemeal using a process of cauterising the polyp with a diathermy current. The respondent perforated the appellant’s duodenum during the process of removing the polyp. The perforation was not discovered at the time of the operation. Sepsis occurred, resulting in the appellant requiring further medical attention and leaving her with ongoing problems.
The proceedings were commenced in the District Court of New South Wales in May 2001. It appears that at some stage, not disclosed by the appeal papers, they were transferred to the Supreme Court’s Professional Negligence List. It was common ground that they were not subject to the Civil Liability Act 2002: see Schedule 1, cl 2(2)(a).
It appears to be common ground that the perforation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 293
Decision Date: 10 November 2008

CaseChat Overview and Summary

The appeal in *Marko v Falk* concerned a claim for medical negligence arising from endoscopic surgery. The appellant, the patient, alleged that the respondent, the surgeon, had been negligent in the performance of the surgery and in failing to warn of the risks associated with the procedure. The case was heard in the Court of Appeal.

The central legal issues before the Court of Appeal were whether the surgeon had breached the standard of care expected of a reasonable medical practitioner in the diagnosis and treatment provided, and whether the surgeon had adequately warned the patient of the material risks inherent in the surgery. The court also considered the applicability of the doctrine of *res ipsa loquitur* to the circumstances.

The Court of Appeal applied the principles established in *Bolam v Friern Hospital Management Committee* and its subsequent interpretations in Australian law, which require a medical practitioner to exercise the degree of care and skill of a reasonably competent practitioner in the same field. The court distinguished between the duty to warn of risks and the duty to exercise reasonable care and skill in treatment. The court found that the evidence did not establish that the surgeon's actions fell below the accepted standard of medical practice, nor that the warnings provided were inadequate in the circumstances. The doctrine of *res ipsa loquitur* was not found to be applicable.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs (per McColl JA, Campbell and Bell JJA agreeing)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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