Marko v Falk [2008] NSWCA 293

Marko v Falk [2008] NSWCA 293

The respondent was not negligent in removing the duodenal polyp piecemeal by endoscopic snare. The evidence established that such a procedure was within the scope of accepted medical practice and clinical judgment for an experienced endoscopist. Duodenal perforation is a rare but recognised risk and can occur in the absence of negligence. The fact of injury alone (res ipsa loquitur) does not establish breach of duty. The assessment of damages by the primary judge disclosed no error.

Jurisdiction
Australia
Judgment Date
10 November 2008
Procedural Posture
Appeal Medical Negligence / Court of Appeal Judgment
Outcome
Appeal dismissed with costs
Legal Topics
['endoscopic Surgery' 'bolam Principle' 'clinical Judgment' 'assessment of Damages' 'res Ipsa Loquitur' 'duty to Warn of Risks']
['tort Law' 'medical Negligence'] ['endoscopic Surgery' 'bolam Principle' 'clinical Judgment' 'assessment of Damages' 'res Ipsa Loquitur' 'duty to Warn of Risks']

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Procedural Posture

Appeal Medical Negligence / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether removing a large sessile duodenal polyp by endoscopic snare piecemeal amounted to medical negligence' 'Whether the occurrence of duodenal perforation is sufficient to infer negligence (res ipsa loquitur)' 'Whether damages were properly assessed by the primary judge']

Ratio Decidendi

The respondent was not negligent in removing the duodenal polyp piecemeal by endoscopic snare. The evidence established that such a procedure was within the scope of accepted medical practice and clinical judgment for an experienced endoscopist. Duodenal perforation is a rare but recognised risk and can occur in the absence of negligence. The fact of injury alone (res ipsa loquitur) does not establish breach of duty. The assessment of damages by the primary judge disclosed no error.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed' "Appellant to pay the respondent's costs"]