Limitation – what’s all the fuss?
Every time a medical negligence solicitor assesses the risk of bringing a claim limitation is at the front of their mind. Why? Because if a claim has gone beyond the usual 3 year limitation period the chance of success diminishes considerably and there are only very very limited ways that the claim may still be allowed to be brought before a court.
The usual rule of limitation is that you have 3 years to bring a claim from the date you knew or ought to have known that negligence occurred. Be aware that rules are different in the case of someone who has passed away; a child or someone who lacks mental capacity. We solicitors get very excited about the “ought to have known” part and spend a lot of our time assessing when that should be.
Firstly, we think about the date when the negligence occurred. For example, a patient goes to the hospital with a sore foot after a fall; they are given an X-ray and a doctor looks at that X-ray before sending them home, telling the patient they have a sprain when in fact the X-ray showed a severe fracture that needed surgery. The doctor missed a fracture on that day so that is the day the negligence occurred.
However, the date that the patient knew negligence occurred was later because when they got sent home they thought they had a sprain. Using this example the patient continued to soldier on for 3 months until they went back for another X-ray. This time they were told they had in fact suffered a fracture when they attended 3 months earlier. This is the day that the patient had knowledge of the negligence and this will be the day the solicitor assesses that the limitation period starts.
If you miss the 3 year period your claim will be “statute barred” which means that you no longer have the right to bring a claim. The court has power to allow a claim where limitation has passed to continue (when an application is made under section 33 of The Limitation Act 1980) but the powers to do this are very limited. A judge only allows a claim to continue in exceptional circumstances and the Claimant has to make a case as to why it should be allowed.
To avoid the pitfalls of limitation the best advice is to approach a solicitor as soon as possible after you become aware that you potentially have a claim in medical negligence. An awful lot of work is needed to investigate a claim and the more time your solicitor has the better.
If you think you may have been injured as a consequence of medical negligence call us and we would be happy to discuss it with you.
- someone who has passed away (3 years from date of death or 3 years from the personal representatives date of knowledge);
- a child (3 years following their 18th birthday or 3 years following their death) or
- someone who lacks mental capacity under The Mental Capacity Act 1983 (3 years from the date that capacity is regained or 3 years from their death if capacity is never gained or regained within their lifetime)