Limitation In Clinical Negligence Matters

One of the most crucial discussions to have with a client making an enquiry in relation to a potential negligence claim, will include determining the date of expiry of the limitation period.

Under the Limitation Act 1980, there is generally a three-year time limit to make a claim in clinical negligence. If Court proceedings are not commenced before the expiry of this period, then it will become statute-barred.

At Nelsons, our team are specialists in clinical negligence claims and will always look at any potential claims and will be happy to talk it through with you, as limitation is so important to these types of cases, we have set out below how it works.

General rule

Court proceedings (the issue of a claim form in the High Court or County Court must be started no later than 3 years from either:

  1. The date of the act or omission giving rise to the injury; or
  2. If later, from the patient’s date of knowledge of the injury

Date of knowledge

Primarily, the limitation expires three years from the date that the negligent treatment was provided. However, sometimes it does not become clear straight away that negligent treatment was provided. For example, damage may be caused during an operation or procedure, which does not present in a patient until symptoms develop and/or investigations are carried out and this can often be sometime after the procedure in question. In this situation, a client can argue that the 3-year time period to run their claim does not start until they acquire such knowledge.

The Limitation Act sets out that the date of knowledge is the date on which a patient first has knowledge of the following:

  • That the injury in question is significant;
  • That the injury is attributable to the act or omission which is alleged to constitute negligence, nuisance or breach of duty

Knowledge includes anything that they might reasonably have been expected to discover themselves or with the help of advice from a GP.

Exceptions to the rules

There are certain exceptions to the time limits in medical negligence claims, these exceptions are generally when a child is involved, an adult who lacks mental capacity or where the victim has sadly died.

Children

Where a child is involved the three-year time limit will start to run on their 18th birthday and expire when they become 21 years old. However, a child is unable to bring a claim themselves and therefore a Litigation Friend would be appointed to do so on their behalf. A Litigation Friend is normally a member of the child’s family.

Mental capacity

For persons who lack mental capacity (ie those who are incapable of managing and administering their affairs), the time limit does not run during the time they lack mental capacity. For those with a permanent brain injury, the time limit will never run. For those that are able to recover, however, the three-year time limit resumes when the person regains mental capacity.

If a person lacks capacity, they are considered to not be able to bring a claim themselves, and therefore, a Litigation Friend would be appointed to bring the claim on their behalf.

Death

Where a person has died as a result of negligence clinical treatment, the Executor/Administrator of the Estate has three years from the date of death in which to make a claim. However, a claim could not be pursued if the deceased’s claim was already statute barred before they died.

Overriding the time limit

The Court has a discretionary power to override the time limit where it is considered reasonable to do so. This gives the Court a general discretion to consider the merits of clinical negligence cases beginning outside the limitation period. However, this discretion is only granted in exceptional circumstances.

The Court would consider any relevant circumstances, such as the length of time since limitation has passed and the prejudice that would be faced by the Claimant were they not to be able to bring the claim. The Court would have to balance the prejudice to the Claimant with the prejudice that a Defendant could suffer in defending a historic claim where for example key witnesses may no longer be available to give evidence. It is the responsibility of the Claimant to show why the limitation period should not be applied.

How Nelsons can helpLimitation Clinical Negligence Matters

Helen Wilkinson is a Paralegal in our expert Medical Negligence team, which has been ranked in tier one by the independently researched publication, The Legal 500.

If you have any questions in relation to the subjects discussed in this article, then please get in touch with Helen or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.

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