13 January 2023

Have I run out of time make a medical negligence claim?

Here at Wilkin Chapman, our medical negligence team receive a lot of enquiries where the concerns relate to treatment that happened a long time ago. 

Such claims can easily be dismissed as being “too late” or “out of time” but what exactly does this mean? More importantly, what options do people have if they are beyond the normal timescales?

What does limitation mean?

What we are talking about here is the issue of limitation. Limitation effectively is a time limit in which a claim needs to be formally issued at court. This is governed by the Limitation Act 1980.

The issue of limitation in medical negligence cases can often be more complex and uncertain than might first appear, as there are both subjective and objective issues involved.

What is the time limit in medical negligence cases?

Under the Limitation Act 1980, you generally have three years from the date that the injury occurred to issue a claim. If a claim is not issued before the expiry of this time limit, then it may become “statute barred”, which means it cannot be pursued.

However, there are exceptions to this rule. The most common exceptions we see in our medical negligence cases include “date of knowledge” and “date of death”.

Date of knowledge

It may not always be immediately obvious that an injury has occurred as a result of medical negligence. For example, symptoms of a problem caused by surgery may not appear until much later, for which further investigations reveal the negligent injury as the cause.

The Limitation Act 1980 provides a solution for cases like this. In this circumstance, the injured person will have three years from when they acquired this knowledge. The “date of knowledge” is therefore the date that the person has (or should have had) knowledge:

  • That the injury was significant;

  • That the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence; and

  • The identity of the defendant.

It is important to note that “knowledge” can include anything that the person ought to have known. This means that the person could have reasonably been expected to discover it themselves or with the help of a doctor. If the court determines that the person reasonably could and should have known about the medical negligence from a particular date, then the time limit will start from then.

Date of knowledge is particularly important if an injury occurred to a child, as they are not deemed to have that knowledge until they reach 18 years of age. The three-year time limit will begin on their 18th birthday and will expire when they become 21 years old. If the injuries the child suffered are particularly significant, they may never meet that knowledge criteria, and therefore may never be “out of time” to bring a claim.  This is particular important in brain injuries suffered at birth.

Date of death

In some unfortunate circumstances, a person may die as a result of the negligent medical treatment they received. In these circumstances, their family or personal representatives would have three years from the date of death to issue the claim.

It is important to note that this exception only applies if the deceased’s own claim was not statute barred before their death. This means that the person must have died within three years of the injury, or the knowledge of their injury.

These exceptions are complex, and it is often difficult to know when they apply. If you or a loved one feel you have experienced medical negligence, and you are unsure whether you have time to commence a claim, you should always contact an expert for legal advice. It is important not to rely on these exceptions in order to make a claim.

What if a medical negligence claim is not issued on time?

In circumstances where the formal claim is not issued in time, the Court does still have the discretion to allow a claim to be brought, even where it appears to be too late. This discretion is permitted under Section 33 of the Limitation Act.

The factors that the court will consider would include:

  1. Whether it would prejudice the defendant

  2. The length of and reasons for the delay

  3. The impact that the delay will have on the cogency of the evidence

  4. The conduct of the defendant

  5. The duration of any disability of the person bringing the claim

  6. The extent to which the person bringing the claim acted promptly and reasonably once they became aware of the potential claim

  7. The steps taken by the person bringing the claim to obtain expert evidence and the nature of that advice

Applications to extend the time limit under these grounds are often complex. Such applications are fraught with difficulty and would almost always require specialist advice. 

Final thoughts

Jonathan Baker, partner within our medical negligence team, said:

“As can be seen, sometimes the knowledge that someone possesses is not clear-cut, and therefore it is not clear when those criteria are met or ought to be met. If you have suffered an injury, we always recommend speaking to a medical negligence solicitor at the earliest opportunity to try and avoid such arguments.

Here at Wilkin Chapman, our medical negligence experts would always be happy to speak to someone at the earliest opportunity about their concerns. Whilst the legislation is there, it would not be sensible to allow time to lapse and rely on date of knowledge arguments or Section 33 applications if a claim can be brought promptly.”

Find out more about how we can help you with your medical negligence claim or contact Jonathan Baker for a no obligation discussion.

Need help?

Contact Jonathan to discuss this further.

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