Burne v A [2006] EWCA Civ 24 (25 January 2006)

Burne v A [2006] EWCA Civ 24 (25 January 2006)

The trial judge was not entitled to override the joint expert view on acceptable practice without giving the parties an opportunity to address the Bolitho point; the judgment must be set aside and the case remitted for retrial, including both liability and causation.

Citation
[2006] EWCA Civ 24
Parties
Appellant/defendant: Dr S. R. Burne; Respondent/claimant: 'A'
Jurisdiction
England and Wales
Judgment Date
25 January 2006
Procedural Posture
Appeal (medical Negligence) / Appeal From High Court Judgment on Liability Only; Court of Appeal Judgment
Outcome
Appeal allowed; judgment for claimant set aside; retrial ordered.
Legal Topics
Standard of Care for General Practitioners, Role of Expert Evidence in Negligence, Application of Bolam and Bolitho Tests, Telephone Diagnosis Liability, Alternative Dispute Resolution in Clinical Negligence
Medical Negligence Tort Law Civil Procedure Standard of Care for General Practitioners Role of Expert Evidence in Negligence Application of Bolam and Bolitho Tests Telephone Diagnosis Liability Alternative Dispute Resolution in Clinical Negligence

Case Brief

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Parties

Dr S. R. Burne

Appellant/defendant

'A'

Respondent/claimant

Procedural Posture

Appeal (medical Negligence) / Appeal From High Court Judgment on Liability Only; Court of Appeal Judgment

Legal Issues

  1. 1 Whether the general practitioner was negligent in failing to elicit a full history from the claimant's mother during a telephone consultation
  2. 2 Whether the judge was entitled to reject the joint view of medical experts on acceptable practice under the Bolam and Bolitho principles
  3. 3 Whether further 'open' or 'closed' questions should have been asked to diagnose shunt blockage

Ratio Decidendi

The trial judge was not entitled to override the joint expert view on acceptable practice without giving the parties an opportunity to address the Bolitho point; the judgment must be set aside and the case remitted for retrial, including both liability and causation.

Court Disposition

Appeal allowed; judgment for claimant set aside; retrial ordered.

Orders

  • Set aside High Court judgment for claimant.
  • Remit case for retrial on liability and causation.