The nature of medical negligence claims are very complex, and dependent on individual circumstances, time limits to bring an action may vary depending on the circumstances. However you should assume that it will be as normal, which is laid out below — this is why it is especially important that you act quickly if you think you have a claim. Don’t wait a while before speaking to a medical negligence Solicitor, act quickly.
For further guidance on statutory Limitation, please refer to the Limitation Act 1980.
In Most Cases
For adults who are mentally capable, the time limit is three years from what is called the “date of knowledge” . This could be either the date that the negligence occurred, if it was realised immediately, or from the date when any symptoms, illnesses or malpractices were discovered.
When you talk to a Solicitor, they will be able to explain to you whether you have an appropriate amount of time left to make the claim worth pursing. Medical negligence claims are quite complex and while you may know immediately if you have suffered from negligence such as botched surgery or had your care neglected, certain forms of negligence such as undiagnosed cancer may not become apparent until months or years later. In this case, you would have three years from the time you find out.
Please be aware that this is the time limit to issue a claim form, not to speak to a Solicitor. Do not leave it too late to talk to a professional.
As you might expect, children are an important exception to the general rule.
In the case of a victim under the age of eighteen, they have three years from the date of their eighteenth birthday to bring a claim forward. This is specifically arranged so that a child can take it into their own hands to pursue a medical negligence claim for themselves once they have the legal right.
If the child grows into an adult who is deemed to be lacking in mental capacity and is unable to manage their own affairs, there is no time limit.
Victims With Unsound Mind
If the Defendant is a protected party (usually someone with a pre-diagnosed mental illness), there is no immediate time limit for their claim. This is also true if the negligence resulted in brain damage.
If, however, they recover from their mental illness and are considered to be capable of handling these matters, they will then have three years from the date of recovery.
Where the victim of negligence has died, the family of the deceased has three years from the date of the death to bring forward a claim on behalf of the victim’s estate. If an instance of negligence is undetected until the victim dies, the three year limitation is also from the date of the death or discovery.
Additionally, if someone is in the process of taking out a medical negligence claim when they die, the family will again have three years from the date of death to continue with their claim, as it may require some considerable re-working,
In some cases, a client may discover years after an inauspicious trip to the hospital that medical negligence took place. This could be due to a limited knowledge of medical procedure on the part of the patient that is only discovered years later — often this occurs when a Doctor or hospital trust has been exposed as having poor levels of care or high mortality rates much later under investigation, or if the trust admitted fault openly. At these times, the limit will be three years from either the date of knowledge, or when they ought to have reasonably known of the negligence.
Why Is There A Time Limit?
Many people wonder why there should be a time limit — after all, it could be that you are unsure of the long-term effects of neglect until much later. But there are valid reasons why the limit has been set at three years.
- Witnesses may forget what happened over time
- Medical notes may be lost, especially as many hospitals have procedure to clear them out after a few years
- You may find you need compensation to deal with your injury or illness, sooner rather than later.
Essentially, the faster you get the process going the more likely it is that you will have all the necessary evidence to ensure a quick and easy process. Especially when it comes to finding evidence, you will be thankful that you contacted the Solicitor early, as some hospitals only have a limit of a few years before they dispose of medical records.
What If The Time Has Expired?
Generally speaking, you will know if it has been three years since you were aware of the negligence. This is especially common when people are aware of a lapse in care but decide to ignore it until much later. If it is after the limit, your claim will likely be barred from being pursued.
However that is not necessarily the end of the matter, and it’s always worth obtaining legal advice to check exactly when your time limit ended. There are some very limited circumstances in which a court may allow you to bring your claim outside of the time limits, but it shouldn’t be something that you expect.
An experienced and compassionate medical negligence Solicitor will advise you on all of these matters and make sure you’re informed as to your rights. Any decent Lawyer will not pursue a claim that is likely to be unsuccessful, and especially not one which would be dismissed out of hand for being out of the time limit.
You can and should consult a few different Lawyers but if you are hearing the same advice, it’s best to go along with their decision. Attempting to pursue the case yourself is likely to end up being very costly.