When a client enquires about a potential clinical negligence claim, one of the most important issues is identifying when the limitation period expires.
Under the Limitation Act 1980, clinical negligence claims are generally subject to a three-year time limit. If Court proceedings are not started before that period expires, the claim will usually become statute-barred, which means the claim cannot proceed.
Because limitation is so important, we explain below how it works.
General rule
Court proceedings, by issuing a claim form in the High Court or County Court, must be started within three years of either:
- The date of alleged negligent act or omission that caused the injury; or
- If later, the client’s date of knowledge of the injury, so for example date of diagnosis.
Date of knowledge
Potential negligent treatment, act or omission is not always apparent immediately. For example, a misdiagnosis. The patient/client may not be aware of a misdiagnosis until after the negligent event. In those circumstances, a client may argue that the three-year period did not start until they acquired the relevant knowledge, i.e. the date on which the correct diagnosis was made.
Under the Limitation Act, the date of knowledge is when the client first knows:
- 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 also includes anything that the client might reasonably have been expected to discover themselves or with appropriate medical advice.
Exceptions to the rules
There are exceptions to the time limits in medical negligence claims, usually involving children, adults who lack mental capacity, or cases where the patient has died.
Children
For children, the three-year time limit starts on their 18th birthday and expires when they turn 21. A child cannot bring a claim themselves, so a Litigation Friend, usually a family member, is appointed to act on their behalf.
Mental capacity
For people who lack mental capacity, the time limit does not run while they are incapable of managing their affairs. If the lack of capacity is permanent, the time limit may never run. If capacity is regained, the three-year period resumes from that point.
Where a person lacks capacity, they cannot bring a claim themselves, so a Litigation Friend is appointed to act on their behalf.
Death
Where a person dies as a result of negligent medical treatment, the Executor or Administrator of the Estate has three years from the date of death to bring a claim.
Overriding the time limit
The Court has discretion to override the time limit where it considers it reasonable to do so, allowing some clinical negligence claims to proceed outside the limitation period. This discretion is only granted in exceptional circumstances. The Court will consider all relevant factors, including how long ago the limitation expired and the prejudice to the Claimant if the claim cannot proceed. This is balanced against any prejudice to the Defendant in defending a historic claim, for example where key witnesses are no longer available. It is for the Claimant to show why the court should exercise their discretion.
Comment
At Nelsons, we have an experienced clinical negligence team who can assess potential claims and discuss the relevant limitation period with you.
How we can help
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.
Nelsons have an experienced clinical negligence team who have significant experience in representing clients with claims arising from delays in the Emergency Department. 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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