Clinical Negligence – Limitation explained?
Any application for compensation for personal injury caused by medical malpractice is subject to the Limitation Act 1980 (the Act).
The term “limitation period” refers to the time within which a claimant, or their representative (for example a parent of a child injured during treatment) may start a legal claim for compensation – normally 3 years.
If a claimant does not start a claim, that is to say if they do not issue court proceedings within the limitation period, then subject to the exceptions, and the discretion of the court to disapply the limitation period, the opportunity to claim compensation is lost forever. A lawyer will say such cases have become “time barred”.
The term “limitation period” refers to the time within which a claimant, or their representative (for example a parent of a child injured during treatment) may start a legal claim for compensation – normally 3 years.
Often cases come to the attention of the lawyers acting for a claimant shortly before the three year limitation period is due to expire. In such cases, faced with the prospect of the claimant’s right to sue being lost forever, lawyers will advise the claimant to issue protective court proceedings that will preserve the claimant’s right of action.
Clinical Negligence – The Limitation Period
When does the three year limitation period start?
In simple terms it starts on the date the injury is caused. In some cases that date will be pretty obvious e.g. a surgeon negligently cuts a blood vessel or a nerve. That will have a reasonably obvious consequence. But what if the injury does not reveal itself immediately? For example the case of a misdiagnosis or delayed diagnosis.
In simple terms limitation starts on the date the injury is caused.
To deal with this issue, the Limitation Act introduces the concept of knowledge. So the starting date for calculating the three year limitation period for medical negligence is the earliest date upon which the claimant first had the knowledge, necessary to bring a legal action.
The claimant must therefore have known
- The material facts.
- Have known that the injury caused was serious enough to investigate with a view to the issue of legal proceedings and
- Must have known the identity of the potential parties to the action.
This knowledge is required to start the limitation clock running, and if any part of this knowledge is missing, the limitation period will not have started to run.
The concept of knowledge, for limitation purposes, is complex and usually turns on the specific facts of a case.
For example:
- Were facts around the injury concealed?
- Could the claimant have reasonably attributed the injury to the treatment, even if they did not know the mechanism of the injury or even know that someone had been negligent?
Some cases dealing with limitation issues are easier to consider than others.
In essence, the three year period does not start to run until the claimant finds out about the problem and who the defendant is. In some cases this can be many years after the medical treatment.
Clinical Negligence exceptions and the court’s discretion
There are a number of exceptions to the general three year rule that can stop or delay time running for medical negligence claims:
The limitation period does not start to run for children until they reach the age of 18 years. This means that the limitation period expires on their 21st birthday.
People who are under a disability by reason of a lack of capacity (however caused) may be able to issue proceedings at any time, as in severe cases, the three year period may never start to run. The limitation period may however start to run if mental capacity returns.
The Court also have a discretion to dis-apply the limitation period. A claimant may well decide to issue a claim, knowing that it appears time barred, to see if the other party take issue with this.
The claimant can then make an application to the court for an order disapplying the limitation period. The court has to balance the prejudice to the other party in allowing a clamant to bring a claim that is otherwise time barred, taking into account the reasons for the delay and the availability and weight of evidence in support of the claim.
Essentially, if the claim looks viable and is not speculative, and assuming it is still possible to have a fair trial (if records and witnesses are available) then the court may exercise its discretion and disapply the limitation period.
So in summary:
Limitation period expires three years after the injury
The period will be extended if:
- The claimant is a minor
- The claimant lacks capacity
- Knowledge is lacking
The court may still disapply a limitation period if a fair trial can take place and there is a good claim and reasons which explain the delay in issuing proceedings.
If you feel you have suffered as a result of medical negligence, then please contact a member of our Clinical Negligence team for an initial free consultation.
Consult a specialist medical negligence solicitor
At Paul Crowley & Co solicitors we have a team of experienced clinical negligence lawyers who can assist and who can explain all of the processes in simple terms.