DePUY ASR HIP RECALL – HOW MUCH TIME DO I HAVE TO BRING MY CLAIM?

Most people are aware that if you suffer from personal injuries because someone did something they shouldn’t have done, or they didn’t do something they should have done – the fancy legal word for which is ‘negligence’ – you’re entitled to be compensated by that person who caused you to be injured.

While proving that someone was negligent and that their negligence was what caused your injuries is by no means always easy (particularly in complex cases such as those involving medical negligence or liability for defective products), the principle that you are entitled to be paid money as compensation for injuries – in legal terms referred to as ‘damages’ – when you are able to prove that someone else caused the harm is itself pretty straightforward and well understood by the public at large.

However, what’s not nearly as well understood or widely known is that there are very strict time limits – known as ‘limitation periods’ – within which you are entitled to begin court proceedings seeking damages for personal injuries.  The consequences of failing to begin a court action within the allowed time limits are both stark and absolute:  your entitlement to be compensated completely vanishes the moment the limitation period expires.

While the limitation period for commencing a legal action depends on the type of claim that is being made, where the claim is for personal injuries the basic rule is that you will not be entitled to bring an action for damages after the expiration of two years from the date on which you suffered the injury.  However, unless you’ve been living on another planet up until recently, you’ll be well aware that, when it comes to the law, nothing is ever that pleasingly straightforward or simple.

Where it gets complicated is where the injured person couldn’t possibly have known enough until some time after the injury took place – the legal term for which is the ‘date of knowledge’ – to be aware that they had suffered an injury and that that injury was caused by another person’s negligence.  Until the injured person is in possession of enough facts to be able reasonably to know that they have been injured, and that their injuries were caused by the fault of someone else whom they can identify, the law effectively pushes the pause button on the limitation period – the two-year limitation period will only begin to run against the injured person when they know enough to bring their legal action.

Your first reaction to hearing this might well be to tut-tut and to reply that this would never happen in reality, that when someone is injured as a result of another person’s wrongdoing they always know it immediately.  Believe it or not, it happens quite often that a significant amount of time elapses between the date of the injury and the date a person becomes aware that they have been injured and that that injury is the fault of someone they know the identity of.

A very good example of how this legal principle operates in practice can be seen in the context of the recent announcement by the HSE that all ASR hip replacement systems manufactured by DePuy Orthoepadics, Inc. are to be recalled with immediate effect.

It had been felt for some time by certain orthopaedic practitioners that these ASR systems (which have been on the market for several years) were faulty but with the passage of time the evidence continued to mount to the point where it became obvious that the very high percentage of difficulties encountered by ASR implant patients (about 12%, or one in eight, within five years of the date of the implant surgery) was not down to mere coincidence.

Let’s apply the legal principle mentioned above to this set of facts.  Say you were unlucky enough to suffer from sufficiently bad arthritis in one of your hips that, about seven years ago (the ASR system was first used in Ireland in 2003), your orthopaedic surgeon recommended a hip implant.  You acted on the expert medical advice you received and went ahead with the implant.  The surgery itself was carried out competently and without any complication but shortly afterwards you started suffering from pain and inflammation.  Whenever you brought this is up with your GP or orthopaedic surgeon in follow-up examinations they, quite reasonably, responded that it was not unheard of to have ongoing residual pain even where the operation itself was successfully carried out – you were just unfortunate.

So, you’ve spent the last several years suffering from pretty nasty pain but, naturally, based on the advice received from your medical experts, you’ve put it down to bad luck and, rather than making a martyr out of yourself, you’ve just gone and got on with life.

Then one day you’re minding your own business and, lo and behold, out of the blue the company that made your hip replacement system comes along and announces that it’s recalling all of these systems because, basically, they’re dodgy and shouldn’t been put on the market.

Now think about it:  you’ve been experiencing difficulties for over five years.  The fact that you’ve been suffering from pain was always as plain as the nose on your face.  What you didn’t have a clue about was that the pain was being inflicted by an injury caused by your hip replacement and that this injury was as a result of the defective design of the manufacturer.

If we didn’t have the date of knowledge rule to stop time from running against you until you had sufficient facts in your possession to know that you had a legal right to seek compensation, the limitation period would have commenced as soon as you were injured by the faulty hip replacement system (about five years ago, shortly after the surgery), even though you couldn’t possibly have known that this was the actual cause of your problems.  As well in excess of the two years would have passed since the date of the injury, you would be prohibited from bringing proceedings against the company.

Thanks to the date of knowledge rule you will in fact have two years from the date on which you became aware (or could reasonably have been expected to be become aware) of what was causing the problem and who was at fault.

While, thankfully, the law has introduced a safeguard to prevent limitation periods from expiring in completely unjust circumstances, the lesson to be taken from this for anyone who has suffered personal injuries is most certainly not to relax and to take your time.  Not surprisingly, there have been many cases where a dispute has arisen as to when the date of knowledge of an injured person actually came to pass.  In some of these cases the courts have determined that the date was in fact earlier than that which the injured person believed it to be, meaning that they were now prevented from bringing a claim for damages.

While two years sounds like a good long stretch of time to allow you to get around to eventually sorting out that claim of yours once you get those thousand-and-one other more pressing things off your plate first, it will seem like no more than the twinkling of an eye when you’re eventually being told by your solicitor that your time is on the verge of running out or, worse still, that it already has.

The date of knowledge rule was developed by the law to prevent unfairness and hardship when someone wasn’t in full possession of the facts, not to allow people to become leisurely about the commencement of legal actions.

The moral of the story is a simple one:  if you have been injured and you think that it was caused by the fault of someone else (especially where you believe that the injury was as a result of something complicated like medical negligence or a defective product) contact your solicitor without delay so that the date of knowledge rule will continue to be an abstract legal principle that you read about in some article somewhere and not your last-ditch attempt to convince a court that it shouldn’t throw your case out.

If you wish to discuss your case with a solicitor call John McCarthy now on 023 883 3348023 883 3348 or email him at john@mccarthy.ie to arrange a free initial consultation.

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Get Your Free Guide to Bringing a Medical Negligence Claim

medical-claim-resource

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

John specialises in personal injury and medical negligence claims. His practice focuses on high value compensation cases. He has extensive experience in this area of litigation for over 10 years. Read more