How long have I got to make a claim for medical negligence?
This is a complex area of law but generally speaking the following rules apply
For an adult who is capable of conducting their own affairs
Court proceedings must be issued within three years of the date of the incident giving rise to the claim or (where later) three years of the date the Claimant became aware that they had suffered a significant injury as a result of the defendant’s negligence. Sometimes it is quite obvious that your medical treatment has gone wrong. For example, if you receive the wrong type of blood during a blood transfusion and go into shock. However, in a case where a diagnosis of cancer goes undetected for months or perhaps years, you may not be aware of the potential delay until the diagnosis is eventually made. In such cases your date of knowledge would be later than the date of the negligence. In this case the time limit runs for three years from the date of knowledge rather than from the date of negligence.
The time limit for bringing a claim on behalf of a child does not start to run until the child’s 18th birthday and runs for 3 years from the child’s 18th birthday to the child’s 21st birthday. This gives the child the option to pursue a medical negligence claim in their own right, once they become an adult.
An adult or child without mental capacity
If an adult is not capable of managing their own affairs there is no time limit for them to bring a claim. The same rule applies to children who, when they are older, will not be able to manage their own affairs.
Claims brought on behalf of someone who has died
The time limit for bringing a claim for someone who has died, provided the ordinary three year limitation period had not expired prior to the date of their death is three years from the date of death. This rule enables the family to bring a medical negligence claim on behalf of the estate and dependent’s of someone who has died.
In cases where the Complainant dies leaving young children, each child will have until their 21st birthday to bring a claim for compensation. However, only one claim is brought on behalf of the estate. So, for example, if a husband were to die leaving a wife and two young children, the wife would have to bring the claim for medical negligence 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?
The Limitation Act 1980 gives the Courts a discretion to dis-apply the time limit in individual cases and so it is always worth asking whether the time limit for pursuing a medical negligence claim has expired and, if it has, whether there is any prospect of persuading a Court to exercise its discretion in favour of allowing the medical negligence claim to proceed.