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Time limit for Commencing Court Proceedings

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A recent decision by a High Court Judge in the case of Rayner v Wolferstans & Medway Hospitals NHS Trust reminds us of two important points concerning the law on limitation – the period within which court proceedings must be commenced when claiming damages for medical negligence.

Limitation can be a tricky issue in medical negligence cases. Very often, the patient is not aware that a piece of medical treatment (or indeed the failure to provide appropriate treatment) has had an adverse effect until some time after the event. In such a case, it would be unjust were the law to insist that time started to run on the date of treatment (or the date when treatment should have been given). The law recognises this by saying that in such a case, time will not start to run until the patient knew the treatment had had an adverse outcome. The question which then arises is when does the patient acquire such knowledge?

The law applies an objective test. When would someone with average, not specialist, knowledge of medical problems be expected to understand that the outcome of a piece of treatment was not as expected? Lawyers have tried to argue that time doesn’t start to run until the patient has a full understanding of all aspects of what happened. The case of Ms Rayner reminds us that that is not the correct test. It was argued in that case that the Claimant acquired the necessary knowledge on the date when she gained sufficient information to enable her to particularise her claim precisely, in legal documents to be lodged with the court. The court rejected this argument and found that the Claimant had the necessary knowledge when she acquired the firm belief that her treatment, an epidural, had caused the severe spinal pain and permanent injury from which she was suffering. She had her epidural in 2004. She began to experience severe back pain soon afterwards. It wasn’t until 2012 that she found out that the condition causing her back pain was arachnoiditis and that this in turn had been caused by a contaminant in the epidural. Ms Rayner was held by the Judge to have acquired the necessary knowledge in 2004. Court proceedings were commenced in 2014. Ms Rayner argued that she only gained the necessary knowledge in 2012. The Judge rejected that argument and said that she acquired the necessary knowledge in 2004. Ms Rayner therefore failed the “date of knowledge” test for limitation.

The second important point to emerge from this case however is that the court is willing to exercise its general discretion to allow claims to be brought out of time where, as in this case, full medical records of all the treatment given have been preserved, so that the key evidence necessary to enable the court to assess the claim is available. Although the NHS Trust would be prejudiced if the claim was allowed to proceed out of time, so would Ms Rayner be prejudiced if she was kept out of a valid claim. The court exercised its discretion in Ms Rayner’s favour, on the basis that the key factual evidence was still available, so she was allowed to proceed, despite having failed in her “date of knowledge” argument.

This case therefore reminds us that while the date of knowledge test will be interpreted quite strictly against a Claimant, so that lawyers must always consider very carefully what information the Claimant acquired and when, all may not be lost for a late-coming Claimant, if the crucial contemporaneous evidence which the court will require in order to decide the case is still available.

For a broad overview on how limitation works in clinical negligence claims, follow this link to my colleague Guy Pomphrey’s earlier blog (/site/blog/clinical-negligence/time-limits-on-claiming-compensation-for-clinical-negligence (/site/blog/clinical-negligence/time-limits-on-claiming-compensation-for-clinical-negligence)

If you think you, or your child, may have suffered an injury as a result of negligent medical treatment and would like to speak with a member of the Lester Morrill clinical negligence team, please call on 0113 245 8549 or contact us by email at