Marko v Falk - [2007] NSWSC 14

CITATION: Marko v Falk [2007] NSWSC 14

HEARING DATE(S): 30 - 31 January 2006; 1 - 3, 6 - 9, 13, 16 February 2006; 22 - 25 May 2006.

JUDGMENT DATE :
25 January 2007

JUDGMENT OF: Hislop J

DECISION: 1. Verdict and judgment for the defendant; 2. The plaintiff to pay the defendant’s costs.

CATCHWORDS: Tort - Medical negligence - Endoscopic surgery - No breach.

CASES CITED: Chappell v Hart (1997 – 1998) 195 CLR 232
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Mahon v Osborne (1939) 2 KB 14
Rogers v Whittaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434

PARTIES: Plaintiff - Olivia Marko
Defendant - Gregory L Falk

FILE NUMBER(S): SC 20306/04

COUNSEL: Plaintiff - Mr M. Cranitch SC with Mr C.K. Stewart
Defendant - Ms K.E. Burke

SOLICITORS: Plaintiff - Margiotta Solicitors
Defendant - TressCox Lawyers

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HISLOP J

25 January 2007

20306/04 Olivia Marko v Gregory L Falk

JUDGMENT

Introduction

1 On 21 December 1999 the defendant, a surgeon specialising as an upper gastrointestinal surgeon endoscopist, performed a cholecystectomy, a colonoscopy and an upper endoscopy (gastroscopy) upon the plaintiff. The procedures were performed consecutively whilst the plaintiff was under a general anaesthetic. The upper endoscopy revealed a polyp of the duodenum. Whilst the plaintiff remained under the anaesthetic the defendant performed an endoscopic snare removal of the polyp.

2 Unfortunately the duodenum was perforated in the course of the procedure. The perforation was not discovered at that time and sepsis occurred, resulting in the plaintiff requiring further medical attention and leaving her with ongoing problems.

3 The plaintiff has sought damages from the defendant for the perforation of the duodenum and its consequences. Essentially her case is that the defendant was negligent and in breach of contract in that he failed to adequately warn her of the risks involved, failed to advise her of alternative and safer procedures which were available to remove the polyp, failed to reserve the polyp removal for a later time, and failed to take reasonable care to ensure the plaintiff was not injured in the performance of the surgery. It was also asserted the defendant should not have performed the three procedures at the one time nor should he have performed them in the order which he did. No complaint in relation to the actual performance of the cholecystectomy or colonoscopy procedures is made.

4 The defendant concedes the plaintiff sustained a perforation of the duodenum but denies there was any negligence or breach of contract on his part. Accordingly the issues for the determination of the Court are the defendant’s liability to the plaintiff and, if liability is established, the assessment of the plaintiff’s damages.

Background facts

The parties

5 The plaintiff was born on 24 August 1955 in Serbia. She came to Australia in 1969. In 1972 she married. In 1973 a daughter was born to…

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: [2007] NSWSC 14
Decision Date: 25 January 2007

CaseChat Overview and Summary

Marko, the plaintiff, sued Falk, the defendant, for damages following a medical procedure that resulted in Marko suffering complications. The plaintiff alleged that the defendant, a surgeon, was negligent in the execution of an endoscopic surgery, which led to Marko's injuries. The case was heard and determined in the Supreme Court of Victoria.

The central legal issue before the court was whether the defendant breached the duty of care owed to the plaintiff by failing to conduct the endoscopic surgery with the requisite standard of care and skill. The court needed to assess whether the defendant's actions fell below the standard expected of a reasonably competent surgeon in the field of endoscopy.

The court examined the evidence provided by both parties and considered expert testimony on the standard of care in endoscopic surgery. The plaintiff's expert witness asserted that the defendant's actions deviated from accepted medical practices, resulting in harm to the plaintiff. However, the defendant presented evidence and expert testimony to counter the plaintiff's claims, arguing that the surgery was conducted with the appropriate level of care and skill. After thoroughly reviewing the evidence, the court found that the defendant did not breach the standard of care. The court held that the defendant's actions were consistent with the standard expected of a competent surgeon and that the complications experienced by the plaintiff were not due to any negligence on the part of the defendant.

Consequently, the court dismissed the plaintiff's claim for damages. The defendant was not found liable for the injuries suffered by the plaintiff. The court's decision was based on the conclusion that the defendant's conduct in performing the endoscopic surgery met the required standard of care and skill, and therefore, no breach of duty occurred.

Orders