This is a complex area of law but generally speaking the following rules apply:
In an adult mentally capable of conducting their own affairs
Court proceedings must be issued within three years of the date of the incident or three years of the date when they became aware that they had suffered a significant injury as a result of the defendant’s acts or omissions. This is known as the date of knowledge. Sometimes it is quite obvious that your medical treatment has gone wrong shortly after any treatment that you received. For example, if you received the wrong type of blood during blood transfusion and went into shock. However, in a case where a diagnosis of cancer goes undetected for perhaps months or years, you may not become aware until the diagnosis is made. In such cases the date of knowledge could be some considerable time later than when the potential negligence occurred. The time limit of three years would not start to run until you gained this knowledge.
Children
A child’s time limit to bring a claim for medical negligence does not expire until the child’s 21st birthday. This gives the child the option of considering pursuing a medical negligence claim in their own right, once they become an adult.
An adult or child without mental capacity
If an adult, for example, due to brain damage, is not able to manage their own affairs, then there is no time limit for them to bring a claim. The same is true of children who, when they are older, will not be able to manage their own affairs. The usual time limit of their 21st birthday does not apply in that case.
Fatal Claims brought on behalf of deceased’s estate
The time limit for bringing such a claim is three years from the date of death. This enables the family to bring a claim on behalf of the estate.
Note, in cases where someone dies leaving young children, each child will have up to their 21st birthday to bring a claim for compensation. However, the claim should be brought as one claim. So, for example, if a husband were to die leaving a wife and two young children, the wife would have to bring the claim within three years of the date of death and it would be advisable for the children’s claims to be brought at the same time although, strictly speaking, they would have longer to bring their claim.
What happens if these time limits have expired?
It is always worth seeking legal advice as to whether or not the time limit for pursuing a medical negligence claim has expired. If this is the case, then your claim may be statute barred from being pursued. However, there are limited circumstances, when the court can exercise its discretion to allow you to bring your claim outside these statutory time limits. The court would look at the following factors
- the length and reason for the delay in bringing the claim
- the extent to which any delay may have made the evidence less cogent
- the conduct of the defendant after the cause of action arose
- the length of duration of any disability of the claimant after the cause arose
- how promptly the claimant acted once they became aware that they had suffered an injury which may have been due to the defendant’s negligence
- what steps, if any, were taken by the claimant to investigate their claim, such
- as seeking legal/medical or other expert advice and the nature of the advice given
All the above circumstances would be considered by the Judge, who would then decide, at an early stage in proceedings, whether the claim could be pursued further, despite the usual time limits having expired.
For more information call our medical negligence team on 01405 765661 or free phone 0800 387077.
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