As a general rule, in clinical negligence claims, a claimant has 3 years to start a civil claim for compensation arising from negligent medical treatment. This blog explains the detail behind this rule and touches upon the very difficult position of trying to pursue a claim after this period expires.
The 3 year rule is known as the limitation period and is embodied in the Limitation Act, 1980. If a claim is not formally started at Court (by issuing a claim form) within this 3 year limitation period then a potential claimant is usually statute barred from pursuing the claim. An important question is when this 3 year period of time starts to run from. There are two different rules for this:
(1) Date of Injury
From the date the injury, caused by negligent treatment, occurred. For example, if during surgery on 15 July 2015, a patient has the wrong leg amputated, the patient will be aware of the negligent treatment and will have until 15 July 2018 to start a claim at Court.
(2) Date of Knowledge of Injury
From the date that a claimant became aware of and obtained knowledge that injury was likely to have been caused by negligent treatment. Date of knowledge is important in situations where the injury is not immediately obvious; for example, a faulty hip replacement operation on 15 May 2015 may cause months of pain before a patient returns to hospital and discovers the problem.
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 require therefore assessment of what knowledge the average reasonable person would have been expected to acquire from the facts observable and ascertained, including from medical and other expert practitioners, since the injury was sustained. To illustrate this, if the patient with the faulty hip replacement endured months of pain before speaking to a doctor on 15 December 2015 and finding out about the potentially negligent hip replacement operation, it is unlikely that this date would be their date of knowledge. It is instead more likely to be an earlier date, say 15 July 2015, when a reasonable person might have sought medical advice on the basis of their broad factual knowledge of their pain and discomfort following the operation.
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 clinical negligence team straight away.
Fatal Accident Claims
Fatal accident claims pursued by the family 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 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 have 3 years from the date of the Deceased’s death or from the date when they should have reasonably had knowledge of a link between treatment and death to start a fatal accidents claim.
Exceptions to the Rules
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 clinical negligence team as soon as you can.
The 3 year 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 year limitation period to start a claim begin. For example, if a child suffers a birth injury, limitation to start a claim will expire on their 21st birthday. This is subject to the date of knowledge test (see above) and whether they have mental capacity (below).
If an adult does not have mental capacity the 3 year limitation period does not apply. It only becomes relevant if mental capacity is regained and the 3 year 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.
Investigating potential clinical 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 us 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 that your clinical negligence claim is protected from a limitation defence.
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 Lester Morrill clinical negligence team, please call on 0113 245 8549 or contact us by email at email@example.com .