Limitation in medical negligence
| What is limitation?
Limitation is the date by which you are required to issue your claim at the Court. This means that you must present a claim form to the Court with the correct issue fee. Your claim form will set out the details of your claim. Once the Court has received your claim form, time is effectively stopped.
| Limitation periods in medical negligence claims
In a medical negligence claim, primary limitation begins to run from the date of the accident / incident / injury. The limitation period for medical negligence claims is three years.
For example, if you had an operation on 4 September 2019 which operation you considered to be negligent, you would have to issue your claim at the Court by 4 September 2022. If you do not issue your claim before the limitation date, it is a complete defence for the Defendant to say you are out of time. There are some exceptions to this, which we set out below.
Sometimes, there is an alternative date for when time begins to “run”. This is referred to as the ‘date of knowledge’. An example of this is when an operation is negligently performed and the negligence does not come to light until months, or perhaps even years afterwards. We see cases where doctors have missed tumours on scans and not picked up on them until many months later. The treatment the patient then requires is far more substantial and invasive than had the doctors spotted the tumour on the original scan. In these circumstances, time does not begin to run until it was reasonable to have realised that a significant injury has occurred and that the injury is attributable to the negligence.
It is important to note that the limitation period for other types of claims may be different.
There are some exceptions to the limitation period, one of which is if you were a minor at the time of the injury/accident. In claims involving children, the limitation period does not start until the child’s 18th birthday, which means that the limitation period expires on their 21st birthday. This applies regardless of whether the negligence occurred when they were two or 15.
You can also seek permission from the Court to disapply the limitation date. This is known as a section 33 application. The Court will consider the circumstances of your claim as well as additional factors such as the length of delay; the reasons for the delay; and whether the evidence in respect of the claim is likely to be less cogent given the passage of time. These types of applications are decided on a case by case basis and the threshold for meeting the test is exceptionally high. We therefore recommend that you seek legal advice as soon as you think you may have a potential claim.
| Stop right now, thank you very much….
If you have a potential medical negligence claim but are concerned that the limitation date is impending, you have several options.
The first option is to issue your claim at Court. As mentioned at the beginning of the article, this involves presenting your claim form at the Court. This stops the limitation period and brings your claim within the Court’s remit.
Alternatively, your solicitor can contact the Defendant and request an extension to the limitation period. The parties may agree to extend the limitation date to a specified date in the future. The parties set this out in writing and sometimes in a formal Standstill Agreement.