Marko v Falk [2007] NSWSC 14

New South Wales Supreme Court

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.

Chappell v Hart (1997 – 1998) 195 CLR 232 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 CASES CITED : 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.