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Sophia Courtaux, Legal Assistant, who advises clients considering pursuing a clinical negligence claim, discusses the rules regarding time limits for bringing a claim, and the importance of adherence to these time limits.
On a daily basis I advise people who are considering bringing a clinical negligence claim. All too often we are unfortunately unable to assist in bringing a claim due to them being out of time to do so. So, just how long do you have to bring a clinical negligence claim?
If you have suffered injury as a result of medical negligence there is a limit on the amount of time you have to make a claim for compensation. This is known as the ‘limitation period’.
The limitation period is three years, and generally runs from the date of the negligence. The law does however also recognise that we do not always know that negligence has occurred at the time. The three year limitation period can therefore run from your ‘date of knowledge’, which is when you knew, or ought to have known:
An example of where the three year limitation period would only start from ‘date of knowledge’ is where there has been a delayed diagnosis of cancer due to negligence. For example, if you attended your GP a number of times in 2014 reporting symptoms which required referral for further investigations, but your GP negligently fails to refer you. You then eventually have further investigations in March 2016 which confirm a diagnosis of cancer which was likely the cause of the symptoms in 2014. This diagnosis has been delayed between 2014 and March 2016 as a result of the GP’s negligence in failing to refer at the time. In this scenario, the date of the negligence is at the appointment in 2014 when the GP fails to refer, but the date of knowledge would be in March 2016. You would therefore have three years from March 2016 to issue court proceedings against your GP.
The limitation period is important because the failure to issue a claim form at court so as to issue proceedings and bring your case into the court system before limitation expires will render your claim to become statute barred under the limitation rules and a court may not allow you to pursue it at a later date.
The courts do have discretion to allow cases to proceed after the limitation period has expired, but will only exercise that discretion under certain specific circumstances and therefore you should never delay commencing proceedings in the hope that the courts will subsequently exercise that discretion.
There are some exceptions of the limitation rule:
Death – Where a death has occurred due to negligence, the family or personal representatives generally have 3 years from the date of death, rather than the date of negligence, to bring a case relating to the death of their loved one.
However, there is only a limited category of relatives who are entitled to compensation for bereavement under the Fatal Accidents Act, and anyone falling outside that category would need to pursue a claim under the Human Rights Act (which is not always possible in every case). Court proceedings under the Human Rights Act must be issued at court within one year of the date of death. When discussing your enquiry, we will be able to advise you as to who is entitled to bring a claim when someone has passed away.
Children – The law considers that those under the age of 18 do not have the ‘capacity’ to bring a claim by themselves. Children will need an adult Litigation Friend, normally a parent, to bring the claim on their behalf.
Time does not begin to run against those under the age of 18, until they attain the age of 18. So, if a child has received negligent treatment, they will generally have until their 21st birthday to commence proceedings. This allows the child to bring the claim themselves on reaching the age of 18 if no claim had been brought on their behalf while they were a child.
Mental incapacity – Finally, the law also recognises that some adults, despite them being over the age of 18, still do not have mental capacity to manage their own affairs. For example, if the injured person suffers from dementia or has learning difficulties. Adults without mental capacity will also require a Litigation Friend to bring a claim on their behalf. If the injured person lacked capacity at the time of the negligence then the three year limitation period does not start to run until the injured person has capacity. It is possible that the injured person will never have capacity, in which case there will be no limitation period and the claim can be commenced at any time. That being said, and as discussed below, claims brought too long after the events can be more difficult due to difficulties with obtaining documents and witness evidence as time passes.
Three years may seem a long time but making a claim can be a lengthy process and there is a lot to do in that time. The earlier the claim is started, the more chance there is that we can seek to agree any settlement before Court proceedings are required at all. In addition to this, the earlier you start your claim the better in terms of evidence available for your case. For example, it may be more difficult to obtain the relevant medical records years later, and the events leading up to the negligent treatment will be clearer in your mind, as well as in the minds of any witnesses.
When enquiring as to whether you have a claim, it is important that you can be as specific as possible about the dates involved, both when the incident took place and the date you became aware, in order for us to be able to provide you with the most appropriate and accurate advice.
It is very natural when you have suffered injury to focus initially on your treatment and only start to think about the possibility of a claim at a later date. I and my colleagues always recommend seeking advice about making a claim at the earliest opportunity to ensure that your claim is not out of time as the rules relating to the limitation period can be complex and not immediately clear. It is better to err on the side of caution than run the risk of being statute barred and unable to bring a claim for the substandard care you received.