If you or someone you care about are considering making a claim for compensation for medical negligence or personal injury, it is important to be aware of the time limit within which you have to do so. This time limit is known as the ‘limitation period’.
The general time limit for medical negligence and personal injury claims is 3 years from the date of the negligence. This means that Court proceedings must be commenced by issuing a claim form at Court within 3 years. However, there are circumstances where the 3 year time limit will not start until a later date. The most common of these are:
Children cannot bring a claim themselves and require a ‘Litigation Friend’, who is typically a parent or close relative, to bring a claim on their behalf. The limitation period does not start until the child reaches the age of 18, which gives the child the opportunity to bring a claim as an adult, where someone has not brought a claim on their behalf before. This means that the limitation period expires on the child's 21st birthday.
Date of knowledge:
There are circumstances where it is difficult to identify the exact date when the damage occurred and therefore when the 3 year time limit begins to run. In this situation the limitation period starts to run from the ‘date of knowledge’ of the injured person. There are 3 main requirements to be satisfied before a claimant can be said to have ‘knowledge’:
- That the injury in question was significant;
- That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
- The identity of the defendant.
A common example of this is where there has been a delayed diagnosis. The negligence occurs at the time when the medical professional(s) first missed the diagnosis. A patient is unlikely to be aware that a diagnosis was missed or that there is a significant injury, until they are actually diagnosed and this can be months or even years later. Therefore, the later date would be the date of knowledge and they would have 3 years from that date to bring a claim.
There are circumstances where the injured person lacks mental capacity to understand or bring a claim, and the law recognises how these individuals could be unjustly penalised by the 3 year time limit.
- Where the injured person lacks capacity prior to or from the date they were injured, the 3 year time limit will not begin until the injured person regains capacity. It may be the case that the injured person never regains capacity, which means that the 3 year time limit will never start and a claim can be brought at any time by a Litigation Friend.
- If the injured person loses capacity at some time after they were injured, the 3 year time limit applies and proceedings must be commenced from the date of the negligence or the date of knowledge
In the unfortunate cases where the injured person dies within the three year limitation period, the 3 year period is extended to 3 years from either the date of death or the date of knowledge of the deceased, whichever is later. This allows the deceased's estate to bring a claim on their behalf.
In some cases, an individual may seek to make a claim for damages caused by the negligence of a medical professional under the Human Rights Act 1998, which would have to be made against a public body or authority such as the armed forces or the NHS. In this circumstance, the time limit would be 1 year from the date that their rights were breached.
What happens if the claim is not brought in time?
If legal proceedings are not commenced at Court in line with the above time limits, the Court may not allow you to bring the claim. There is nothing that prevents a Claimant from trying to bring a claim, however the Defendant is likely apply to the Court to have the claim struck out (dismissed), on the basis that the limitation period has expired.
The Court has the ability to extend the 3 year limitation period in cases that are not covered by the exceptions listed above and will need to be satisfied that there is a very good reason for doing so.
It is rare that the Court will extend the limitation period and it is extremely important that a claim is brought within the limitation period.
The law relating to limitation can be very complicated, especially where this relates to medical treatment and the information above demonstrates the general position. The facts of each case are different and need to be considered on their own merits, which is why it is vital that expert legal advice is sought as soon as you consider that you have suffered an injury.