Is it too late to bring a clinical negligence claim? Time limits and guidance

Is it too late to bring a clinical negligence claim? Time limits and guidance

Sabrina Tang, Clinical Negligence

When you go the hospital or GP to seek medical help, the last thing you want is for something to go wrong. If you ever find yourself in these unfortunate circumstances your main priority will be your health and ensuring that you receive the correct treatment.

Perhaps at the back of your mind you may be wondering how did this go wrong? Why was this missed? Could things have been different? Sometimes your concerns may lead you to take action perhaps through making a complaint, requesting for your medical records, or you may even wish to seek legal advice. If it is the latter, then it’s important to understand the different types of medical negligence that could apply to your situation and the certain time limits that you need to be aware of if you wish to pursue a clinical negligence claim.

The Limitation Act provides that the time limit to bring legal proceedings at Court is three years from:

1. The date on which harm resulted from the allegedly negligent action
2. If later, the date of knowledge of certain matters. Knowledge must include an awareness:

• that the injury was significant
• that it was, in broad terms caused, wholly or in part, by the allegedly negligent action
• of the identity of the negligent party

What does this mean in practice?

If you had an operation which went wrong for example, during a bowel operation the surgeon negligently punctures your bowel which is recognised during the procedure and you are informed of this immediately after, then the time limit would start from the day of your procedure.

However sometimes an injury may not be apparent straight away, for instance, if there was a failure to recognise the punctured bowel during the surgery, you continue to experience symptoms which are then investigated, and the perforated bowel is later discovered, then a later ‘date of knowledge’ is applied and the time limit starts from this date.

Are there any exceptions?

• For those who are under the age of 18 years, the three year limitation period does not begin to run until their 18th
• If the injured person is suffering from a mental disability the time limit does not start to run until mental capacity has returned. If mental capacity never returns then a claim can be brought at any time in the future, even if the injury occurred more than 3 years ago
• In fatal claims, the time limit is three years from the date of death
• Aside from these three exceptions above, in certain circumstances the Court may exercise its right to dis-apply the limitation period or the defendant may not necessarily take any point on limitation. However this is rare and we would always advise proceedings to be brought within the time limit specified

If you fail to issue proceedings at Court within the relevant time scale you will not be able to bring a claim.

It is important to note that it is not enough to have just made a complaint within the three years or even to start making enquiries with a solicitor within the three years – the law states that you must issue your claim with the Court within three years.

Clinical negligence claims take time to properly investigate. Therefore, if you believe that you have experienced medical negligence and you wish to pursue a claim, it is imperative that you contact a member of our experienced Clinical Negligence Team on 0191 232 8345 to further discuss your potential claim before it is too late.