Burne v A

Burne v A

The trial judge erred in law and procedure by rejecting the unanimous expert evidence on acceptable medical practice without properly raising the Bolitho point with the parties and giving the experts an opportunity to justify their position. The judge's findings on the need for specific questioning were not open to him in the circumstances. The appeal is allowed, the judgment set aside, and the matter remitted for retrial on liability and causation.

Parties
Appellant/defendant: Dr S. R. Burne; Respondent/claimant: A
Jurisdiction
England and Wales
Judgment Date
25 January 2006
Procedural Posture
Civil Appeal (medical Negligence) / Appeal From High Court Judgment on Liability
Outcome
Appeal allowed; judgment set aside; retrial ordered.
Legal Topics
Standard of Care, Expert Evidence, Bolam Test, Bolitho Exception, Clinical Judgment, Telephone Diagnosis, Duty of Care
Medical Negligence Tort Law Standard of Care Expert Evidence Bolam Test Bolitho Exception Clinical Judgment Telephone Diagnosis +1 more

Case Brief

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Parties

Dr S. R. Burne

Appellant/defendant

A

Respondent/claimant

Procedural Posture

Civil Appeal (medical Negligence) / Appeal From High Court Judgment on Liability

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, resulting in a missed diagnosis of shunt blockage.
  2. 2 Whether the trial judge was entitled to reject the unanimous expert evidence on acceptable medical practice under the Bolam and Bolitho principles.

Ratio Decidendi

The trial judge erred in law and procedure by rejecting the unanimous expert evidence on acceptable medical practice without properly raising the Bolitho point with the parties and giving the experts an opportunity to justify their position. The judge's findings on the need for specific questioning were not open to him in the circumstances. The appeal is allowed, the judgment set aside, and the matter remitted for retrial on liability and causation.

Court Disposition

Appeal allowed; judgment set aside; retrial ordered.

Orders

  • Judgment in claimant's favour set aside.
  • Case remitted for retrial on liability and causation.