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Posted on 21st April 2017

Time Limits in Medical Negligence

One of the most common questions people ask is, "have I run out of time?" when it comes to medical negligence claims. Like most things in British Law this is not as simple as you would imagine.

History

In 1980 the medical negligence Statute of Limitations was introduced as part of the Limitation Act. This placed an amount of time that you had to make a claim for compensation within.

There are two reasons for imposing a time limit in these types of claims:

1. Any evidence of medical negligence is still apparent

2. Medical practitioners don't have to live in constant fear of a claim being placed against them

What is the time limit?

Generally speaking the time limit is 3 years, and this starts on the date you became aware of your injury or the avoidable decline of an existing condition. This is known as the 'Date of Knowledge' or 'Date of Discovery'.

What is the Date of Knowledge or Date of Discovery?

Your three years to claim starts the moment you realise that medical negligence has taken place. This is usually the date of the procedure. There are exceptions which we will go through below.

Date of Knowledge is a bit different. This is defined in the Limitation Act as the date when you knew or ought to have known the following:

  • That the injury in question was significant
  • That the injury was at least partially attributable to the accident or negligent treatment which is the subject of the compensation claim
  • The identity of the defendant (the person who performed the negligence)

What are the exceptions?

Medical devices

If your injury has been caused by a faulty medical device then your claim might be against the manufacturer, rather than the hospital that fitted it.

If the device has been in use in the UK for less than 10 years, you still have 3 years to claim. However, if it has been in circulation for 9 years, you would only have one year to claim for any compensation.

Claims involving children

As a parent or guardian you are allowed to claim on behalf of your child if they are under the age of 18, without being subject to the three-year rule. Once they reach the age of 18, they will have 3 further years to claim.

Catastrophic Brain injuries and the Mental Health Act (1983)

The law states that the adult claimant must have the mental capacity to make a claim for medical negligence.

If the person is in a coma then the time limit begins when that person has regained the mental capacity required by the Mental Health Act. If they never regain this then a claim can be made on their behalf. This person will be referred to as a 'Litigation Friend'.

Mills & Reeve give a good example of when limitations are not so easy to establish:

A child, having an elective tonsillectomy in 1960 aged three, suffers brain damage during the procedure. His parents are told it's one of those things. The child, now 22, is being cared for full time by his now ageing parents, who happen to have cause to investigate the matter so long after the event following a television programme. Never told that something had gone wrong, the true facts of the situation were concealed from them. The medical and theatre records that remain, and it was surprising that any did remain, revealed a child presenting for elective surgery with a high and labile temperature, clearly unwell, and where (albeit with the benefit of 20:20 hindsight) the operation should not have proceeded. It did, he developed hyperthermia as a combination of the anaesthetic agent and his fever, and suffered brain damage rendering him incapable of independent living and lacking mental capacity. In my example, assuming the child had not been brain damaged, the three year limitation period would have started on his 18th birthday, so by the age of 21 his claim would be time barred. As it was he was brain damaged and so treated as a person under a disability, against whom time does not run. Proceedings were commenced against the defendant 25 years after the events that gave rise to the claim. There was no limitation defence.

Not sure if you are within the time limits?

If you are still not sure if your claim is within limitation, then don't delay and speak to a solicitor as soon as you can.

Top Tips

1. Get everything in writing - if the service offers you corrective procedures, or admit to negligence make sure you get this in writing.

2. Keep all correspondence from the service regarding your treatment, procedure and anything to do with your negligence complaint.

3. Contact a solicitor as soon as possible. Three years seems like a long time but sometimes cases are very complex and it takes time to collect all the evidence.

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