If you are considering making a claim for medical negligence compensation, it is important that you are aware of the limitation period for making a claim.
As a general rule, the medical negligence claims limitation period is 3 years from the date of the alleged negligent medical treatment. This means that the claim must be formally started at the court (by issuing a claim form at the court) within the 3-year time limit or the claimant could be statute barred from making the claim. If the claimant fails to make a claim within the limitation period, the alleged negligent party may choose to stop the claimant from pursuing the claim.
However, there are circumstances where the limitation period may not start until a later time. The most common exceptions include:
- Date of Knowledge
Identifying the date when the actual negligent act occurred – and when the 3-year limitation period begins – can be difficult in some cases. In circumstances like these, the limitation period begins from the date of knowledge of the negligence. For a claimant to have this ‘knowledge’:
- The injury must be significant;
- The injury must have been as a result of the alleged negligent act, either in whole or in part;
- The identity of the defendant must be known.
For instance, in a situation where there has been delayed diagnosis, this means that the negligent act occurred at a time when the healthcare provider(s) missed the initial diagnosis. A patient will likely be unaware that there was missed diagnosis or significant injury has occurred as a result, until they a diagnosed at a later time. This later date represents the date of knowledge – a patient would have 3 years from this date to make a medical negligence claim.
The 3-year limitation period does not apply to children in the same way as adults. A parent or close relative – also known as a ‘Litigation Friend’ – can make the claim on their behalf. For children, the 3-year limitation period only begins when they turn 18. For instance, if a child who suffers a birth injury will have until their 21st birthday to make a medical negligence compensation claim. This special limitation period is also subject to the date of knowledge (when the child’s parents became aware that the injury was caused by negligence) and mental capacity (see below). There is no limitation period for children who lack mental capacity to pursue medical negligence claims.
- Mental Capacity
In cases where the injured person does not have the mental capacity to independently make decisions and bring a claim, the 3-year limitation period does not apply. It will only apply if the injured person regains mental capacity.
It is also possible that the injured person never regains mental capacity; in this case, the 3-year time limit will never begin and the Litigation Friend of the injured person can pursue a claim on their behalf. It is often necessary to seek the advice of expert medical negligence solicitors who work with medical professionals to prove a lack of mental capacity, especially in a case where the time limit is not clear.
In a situation where the injured person dies within the 3-year time limit, the limitation period is extended to 3 years from the date of death or 3 years from when the family should have known that the death was linked to negligent care. This is to allow the estate or dependents of the deceased bring the claim on their behalf.
However, a claim cannot be made if the deceased’s claim was statute barred prior to their death. For instance, if the deceased died as a result of poor medical treatment that occurred more than 3 years before their death, the 3-year time limit for their claim would have expired. But the deceased’s family would be able to make a claim if, for instance, the negligent act occurred 2 years prior to the deceased’s death; in this case, the deceased’s family can have 3 years from the date of the deceased’s death or from the date when they should have had knowledge of the negligent act leading to the death.
What Happens if the Limitation Period Runs Out?
If you have failed to comply with the above time limits, the defendant will likely apply to the Court to have your claim dismissed on the basis of the expiration of the limitation period. However, the Court retains the right to extend the 3-year time limit and can apply their discretion if they believe you have compelling reasons for the delay, that the defendant will not be prejudiced as a result, and the trial will be fair for all parties.
The law relating to medical negligence claims limitation period can be very complex. As every case is unique, they must be considered on their merits, which is why you need to seek legal advice from medical negligence solicitors as soon as you believe you have suffered an injury due to negligence.
Why is there a Medical Negligence Claims Limitation Period?
A limitation period helps to protect medical professionals and institutions from claimants pursuing claims long after the original treatment. Generally, medical professionals owe their patients a duty of care and do their best to provide the best treatment; if medical negligence has occurred, the onus lies of the patient to be aware of their rights and pursue a medical negligence compensation claim within the 3-year limitation period.
How to Contact Us
If you believe that you, or your loved one, may have suffered an illness or injury as a result of medical negligence, please call us on 0800 644 4240 for an instant, no obligation advice from our friendly medical negligence claim solicitors. Solicitors at Medical Negligence Direct are experienced in evaluating potential claims and providing support for the vulnerable. We will ensure you understand how the limitation period applies in your case and if you have a valid medical negligence compensation claim.