How long do you have to make a medical negligence claim?
Under the Limitation Act 1980, there is generally a three year time limit to make a claim in medical negligence. If a claim is not formally brought before the expiry of this limitation period, then it will become statute barred, which means that you will be unable to pursue the claim any further.
At Nelsons, our expert Medical Negligence team often have to give people who approach us with potential claims the bad news that their claim has become time barred according to the limitation period.
The three year limitation period in clinical negligence cases can come around quickly. Most people will know nothing about the limitation period when they are thinking about the possibility of bringing a claim.
In clinical negligence cases, people often take time to feel able to face talking about a claim. The may still be physically and/or psychologically injured. The three year cut off can operate harshly.
At Nelsons, we will always look at any potential claim and will be happy to talk it through with you. As the limitation date is so important in these types of cases we have set out below in more detail how it works.
When does the three year period start?
The limitation period in a medical negligence claim will either start:
- From the date of the negligence or injury occurred; or
- From the patient’s date of knowledge of the injury.
Date of knowledge
It might not always be clear that injury has occurred as a result of substandard treatment. For example, damage may be caused during an operation which is unknown until a much later date when a patient presents with further symptoms and undergoes investigations which then ultimately finds the cause. Once the cause has been found, the patient will have knowledge and the three year limitation period will start to run from that date.
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;
- The identity of the Defendant; and
- The identity of that person and any relevant additional facts, if it is alleged that the injury was caused by someone other than the Defendant.
Importantly, knowledge is to include anything that they might reasonably have been expected to discover themselves, or with the help of advice from a doctor. Time will start to run from this date of knowledge, if the Court is satisfied that the person reasonably could and should have discovered the information, even if this is before they actually had knowledge of this information.
Time limits in medical negligence claims – 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.
For claims where a child (a person under the age of 18 years old) is involved, the three year limitation period will start to run on their 18th birthday and expire when they become 21 years old.
Children are not legally able to lodge a claim themselves under the reach the age of 18 years old, however, a ‘Litigation Friend’ (generally a parent or close family member) is able to make a claim on their behalf.
Adults who lack mental capacity
For adults who lack mental capacity and are not able to make their own decisions, there are no specified time limits in place. Where the person lacks mental capacity prior to or from the date they received the negligent medical treatment, the three year time limit is only applied when the person regains mental capacity.
When a person loses mental capacity sometime after their medical procedure, the three year time limit will apply from the date of the negligent treatment or the date the person became aware of it.
If a person lacks capacity, they are not considered able to bring a claim themselves and therefore a Litigation Friend would be able to do so on their behalf.
Family of a deceased relative
In instances where a person has died as a result of negligent medical treatment, the family have three years from the date of the death in which to make a claim. It is important to remember that this only applies if the deceased person’s own claim was not statute barred before their death.
Also, if the person who has died had already commenced legal proceedings against the medical professional before they passed away, the family will once again have three years to recommence with the claim, as the claim would either need to be restarted or reviewed again.
How can Nelsons help?
Danielle Young is a Senior Associate in our Medical Negligence team.
At Nelsons, we always recommend that you commence your claim and lodge your Court papers as soon as possible to ensure the best possible outcome for you. We have an experienced team of solicitors in Derby, Leicester and Nottingham who are always happy to discuss the circumstances of your claim and advise you on the time limitations.