Time limits in clinical negligence claims – The 3 Year Limit
When an individual has suffered potentially negligent treatment, the law sets time limits which indiviudals need to abide by to investigate and issue court proceedings. This is to ensure that no person is prejudiced by evidence which could be more difficult to prove or disprove with the passage of time.
Individuals are permitted 3 years from the date on which they have suffered an injury in which to investigate and issue court proceedings. This could be the date surgery was carried out, the date of an incident like a heart attack happened, or the first day presenting at A&E with a problem and so on.
It’s often the case, however, that people only become aware that they may have suffered negligent treatment later on. For example, in cases involving diagnoses of a particular condition or malignancy, the date of the ‘injury’ isn’t clear, but a date will arise from the point the person was given a diagnosis, or a condition was confirmed to them during an appointment. This is known as a person’s ‘Date of Knowledge’ – in other words, the date on which an individual ought to have reasonably become aware that they may have suffered negligent harm or damage.
An individual goes to A&E following a fall at home on 26/07/2021. The individual is told that there is soft tissue damage, and no action is taken. The individual then undergoes a scan 4 weeks later on 23/08/2021, which they were told confirmed a severe fracture which will need surgery to correct.
Whilst the ‘date of injury’ would be 26/07/2021, the individual only became aware they may have suffered potentially negligent harm on 23/08/2021. This individual has until 23/08/2024 in which to investigate a claim and start court proceedings.
Children and Incapacity
Where the individual who has suffered harm is a child, the time limit for investigating a claim will not start to run until they reach ‘majority, ’ i.e. become an adult, which in England and Wales is 18 years old. Children will have until their 21st birthday to issue court proceedings for an incident that happened to them when they were a child.
Where an individual has a condition which means they lack capacity to bring a claim themselves under The Mental Capacity Act 2005, the 3-year time limit for bringing a claim will not start to run until the date they regain their capacity. Sometimes, with some permanent brain injuries and other conditions, an individual may not ever ‘regain’ capacity.
Both children and people without capacity will need what is known as a ‘Litigation Friend’ to act as their representative. This could be a parent or guardian in the case of a child or the parent, spouse, child, or registered guardian of someone who can no longer manage their own affairs.
For claims arising from the treatment a person received before they passed away, the 3-year time limit will start to run from the date of death in order to allow the personal representative (i.e. the appropriate person with Probate over the estate of that person) time to investigate a claim.