Limitation periods for clinical negligence claims

28 Apr 2020 | Jodi Newton

Medical negligence claims are subject to strict time limits which if missed, means you could lose the opportunity to pursue your case forever. Having started my career as an injury solicitors’ negligence specialist, I have been left with a heightened awareness of where the pitfalls lie for the legal profession and missing the expiry of the limitation period tended to be one of the more common mistakes made. It follows that if a legal expert is open to the havoc which can be caused by miscalculating or missing a limitation period, I would recommend against judging the calculation of your limitation period without expert advice from a specialist solicitor.

The law governing the limitation period is set out in The Limitation Act 1980. In short, you must issue a Claim Form at Court within three years of the date of negligence or the date you first had knowledge of the negligence, whichever is the later.

Calculating the limitation period is fraught with complications so it is important to take legal advice as soon as possible, should you wish to bring a claim. There are particularly complex rules for assessing the “date of knowledge” of the negligence.

In my experience, the three years can evaporate very quickly and delaying increases the risk of losing vital evidence and recollections grow dim which could undermine the accuracy of the evidence you give to your solicitors.  I would recommend you see a solicitor ideally no later than 12-18 months after the incident of negligence to avoid the problems which can be caused by delay and to give your claim the best chance of success.

The claim is recognised by the courts as being brought on the date the Claim Form is received by the Court and not on the date the Court staff issue the Claim Form.

There are exceptions where the standard 3 year time limit will not run until later, the most common being:

  • If the injured person dies before the expiry of the limitation period then the claim is preserved for their Estate under Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. The limitation period is then extended to three years from the date of death or the date of the Personal Representative’s knowledge, whichever is the later.
  • The limitation period for any claim brought by a child (defined as those under the age of 18) does not begin to run until the date of their 18th birthday which effectively means that they have until their 21st birthday to issue court proceedings.
  • Where the person bringing the claim lacks mental capacity, there is no time limit for issuing court proceedings. Assessing capacity is not always straightforward and solicitors have to tread carefully when determining whether their client lacks the capacity to make their own decisions or not.
  • The Court has power to exercise its discretion to allow court proceedings to be issued outside of the limitation period, but this is reserved for exceptional cases and there are very specific criteria set by the courts to trigger the Court’s discretion to allow a claim to proceed out of time.

Blog post written by Jodi Newton

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