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Limitation: Time Limits for Claiming
As a general rule, in medical negligence claims, a claimant has 3 years to start a civil claim for compensation arising from negligent medical treatment. It is important to note, children are exempt from the 3 year limitation period (this 3 year period only starts when they are 18) as are individual’s without mental capacity where there is no limitation period. This page explains the detail behind these rules, including exemptions, and the difficulty trying to pursue a claim after limitation expires.
Click here for information about Medical Negligence compensation claims.
The 3 Years Limitation Period
The 3 years Negligence Limitation rule is found in the Limitation Act, 1980. If a claim is not formally started at Court (by issuing a claim form) within this 3 years limitation period then a potential claimant is usually statute barred from pursuing the claim. Expiry of the Limitation period is a defence that a Hospital may well choose to use to stop a Claimant succeeding with a case. When the 3 years period first starts may be tricky to work out. Our expert medical negligence team can help.
When does the 3 years Limitation Period start?
There are two different rules for when the 3 years Negligence Limitation Period starts:
(1) Date of Injury
From the date the injury, caused by sub-standard negligent treatment, occurred. For example, if during surgery on 15 July 2014, a patient has the wrong leg amputated, the patient will be aware of the negligent treatment and its consequences straight away. The Limitation period would, therefore, expire on the 3 year anniversary of the date of the negligent surgery: 15 July 2017.
(2) Date of Knowledge of Injury
It may not always be obvious that a patient has suffered an injury from sub-standard medical treatment. When this situation arises, a second Limitation Period rule applies that asks when should the Claimant have had knowledge that their injury was likely caused by sub-standard treatment.
For example, a faulty hip replacement operation on 15 May 2014 may cause years of pain before a patient returns to hospital and discovers the problem later on, say, on 15 September 2017.
The test to determine when a patient should have obtained knowledge that something has gone wrong with their treatment is the earliest date by which they might have been reasonably expected to find out what the problem is. According to the Limitation Act, knowledge requires the following:
- Facts about the damage caused by the defect that would lead a reasonable person to consider the injury sufficiently serious to consider a claim for compensation.
- That the injury was caused (wholly or partly) by specific defective treatment.
- Knowing the identity of the potential defendant(s).
The test is objective and will therefore need careful assessment of what knowledge the average reasonable person would have been expected to acquire from the facts known and ascertained, including from medical and other expert practitioners, since the injury was sustained. This can often be a complex so it is important that you speak with our experienced lawyers to assist you.
To illustrate this second rule of the time limit for negligence claims, we can look at the patient with the faulty hip replacement following surgery on 15 May 2014 mentioned earlier. Although the patient was only told about the problem by their doctors on 15 September 2017 it may be that the Court would deem their date of knowledge at an earlier date if it was thought that a reasonable person might have sought medical advice earlier because of their pain, discomfort and knowledge.
What knowledge a patient should have reasonably known at a particular stage is objective and, ultimately, will be determined by a Court in the event that a Defendant raises a limitation argument as a defence to a claim. It is a contentious area of law and requires careful consideration and analysis of the specific circumstances in light of case law and the relevant legislation. As a general rule, if you have a suspicion of poor treatment, speak to our medical negligence team straight away.
Exceptions to the 3 years Limitation Period Rules:
Are there special Time Limits for Children?
Yes, the 3 years limitation period does not apply to children in the same way as adults. Only when a child reaches 18 years’ of age does the 3 years limitation period to start. For example, if a child suffers a birth injury, limitation to start a claim at Court will expire on their 21st birthday. This rule is also subject to the date of knowledge test (when did a patient reasonably become aware of an injury stemming from sub-standard treatment) and whether they have mental capacity (see below). If a child lacks mental capacity, there is no limitation period at all, so limitation periods do not apply.
Are there special Time Limits for people without Mental Capacity?
Yes, if an adult does not have mental capacity the 3 years limitation period does not apply. It only becomes relevant if mental capacity is regained and the 3 years’ period will start from this point. It is often necessary to obtain expert medical input to evidence a lack of mental capacity, particularly in the circumstances where mental capacity may come and go and the limitation period is not clear.
Click here to read our dedicated page on Mental Capacity for further information.
What is the Limitation Period when someone has died?
Fatal accident claims pursued by the Estate or dependents of the Deceased must be started at Court within 3 years of the date of death or within 3 years from when the family should have had reasonable knowledge that the death was linked with specific negligent treatment.
A fatal accidents claim cannot be made if the Deceased’s own claim was statute barred before their death. For example (leaving aside any more complicated arguments about date of knowledge - see above) if the cause of the Deceased’s death was poor medical treatment that happened more than 3 years before their death, and the limitation period to start a claim has expired, a fatal accidents claim is very unlikely to be successful. If, however, the poor medical treatment occurred 2 years before the Deceased’s death, the claim will not be statute barred and the Deceased’s family will usually have a full 3 years from the date of the Deceased’s death or from the date when they should have reasonably had knowledge of poor treatment and the death to start a fatal accidents claim.
For example, if Stephen died on 10 August 2017 the Negligence claim time limit would be 3 years’ from this date, 10 August 2020. This area can again be a complex issue that out team of specialist medical negligence lawyers are very experienced with and happy to carefully work through with you.
What happens if you miss the Limitation Period deadline?
Limitation is a defence to a civil claim which ultimately the Defendant can decide not to plead. Even if a claim is statute barred, the Court does have some discretion to disapply the limitation period but only if the claimant can show compelling reasons to explain the delay, evidence to support their claim and the Court is satisfied that the Defendant will not be prejudiced and there will be a fair trial.
Irrespective of the possibility of some Court discretion, solicitors will generally be prevented from taking on statute barred cases because it is unlikely that limitation will be disapplied (save for very exceptional circumstances) and this will undermine almost all solicitors’ risk assessment policies.
Again, the key is to speak to our medical negligence team as soon as you can.
What happens if negligence is discovered years later?
Sometimes an injury is not discovered until years after surgery or treatment. The Limitation Act recognises that this may happen and allows people to purse claims so long as they can satisfy the date of knowledge test (see above) that they only became aware of their injury from suspected sub-standard treatment within the last 3 years. A claim is, however, likely to statue barred if this test cannot be satisfied and in the situation where someone has not pursued a known injury in 3 years.
Why is there a Limitation Period for Negligence Claims?
In our opinion, the 3 years Limitation Period exists to protect Hospitals and Doctors from Claimants bringing medical negligence cases years and years after their original treatment. The onus is on a patient to be aware of their legal rights and to pursue a compensation claim within the set 3 years.
Investigating potential medical negligence claims takes time. Claimant solicitors will often liaise with Defendants in relation to limitation and, in certain circumstances, extensions to the limitation period will be agreed. The crucial point is to contact our team of solicitors before the expiry of the limitation period so that if we can assist with your claim we can talk to the Defendant or, if necessary, issue your claim at Court so your negligence claim is protected from a limitation defence.
Click here for information about Medical Negligence compensation claims.
How to contact us?
If you think that you, or someone you know, may have suffered an injury as a result of negligent medical treatment and would like to speak with a member of the Minton Morrill clinical negligence team, please call us on 0113 245 8549 or complete the Ask Us A Question or Get in Touch forms.
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