How much time do I have to bring my medical negligence claim?

The Statute of Limitations imposes strict time limits within which an injured person must commence their claim. If you don’t commence proceedings within these very rigid time limits your claim will be absolutely extinguished, no matter how seriously you have been injured. For this reason, the need to take steps immediately if you suspect that you have been the victim of medical negligence cannot be emphasised enough.

Medical Negligence Claim Timeframes

The general rule is that you have two years from the date on which you suffered your injury to issue proceedings. Now, to the layperson, this may seem like a very long time indeed. But anyone who has been through a medical negligence claim will tell you that it is a perilously short period which can by overshot all too easily if care isn’t taken to commence investigations straight away.

You’ve got to take on board that most people who have been seriously injured by clinical negligence don’t make an appointment to see their solicitor the day after this has happened. It will often take them several months to have recovered sufficiently (both physically and emotionally) to the point where they feel strong and well enough to even consider taking legal advice on whether or not they have an actionable claim.

You’ve also got to bear in mind that the first thing that your solicitor will have to do before they can go about seeking the necessary expert reports is to take up your medical records. The delays in getting copy records can be substantial. In the case of some hospitals it can take up to six months.

It’s also important to understand that the medico-legal expert who is best suited to consider your claim will almost always be a very busy professional who is very much in demand and that it may take a further several months from the time that they receive the papers from your solicitor to the time when they will have completed their report.

When you add up all of these time periods (the period of time before you first instruct a solicitor plus the period of time spent assembling your records plus the period required by the expert to prepare a report) you’ll find that two years is a very short and unforgiving period for people who have been the victims of medical negligence and that great injustice can easily occur if people don’t go about exploring whether they have a case soon enough.

But, while one should never be complacent or make any assumptions, there are certain circumstances in which the extremely harsh rule of imposing a strict limitation period of two years from the date of the injury to the date of issuing proceedings is alleviated.

The Date of Knowledge Test

The ‘date of knowledge’ test which provides that the two-year period will not begin to run against you until the date upon which you become aware of all of the following pieces of information:

  • You have been injured.
  • The injury which you have suffered is significant.
  • The injury was caused by the fault of someone else.
  • The identity of the person who caused you the injury.
  • If the fault for the injury lies with someone other than the person who is liable to compensate you, the identity of the person who actually caused the injury and the legal basis for why the person you are claiming against is liable.

The date-of-knowledge test can prevent injustice from occurring in many scenarios. Take, for example, a situation where a doctor prescribes a patient with inappropriate medication for a period of time which has the effect of causing them serious organ damage. While the injury may be very serious in nature, it might well not manifest itself for several years. If the patient does not begin to experience serious symptoms until three years after the medication has been taken, an absolute application of the two-year rule would mean that any claim against the doctor would be barred by the Statute of Limitations, notwithstanding the fact that the patient couldn’t possibly have known that they were the victim of medical negligence at any time in that period.

However, the application of the date-of-knowledge test in such a case would mean that the two-year period would only start to run from the date that the patient found out that they had suffered a serious injury (organ damage) and that this injury was caused by someone’s negligence (the doctor’s prescription of inappropriate medication).

What Does Legal Disability Mean For Time Limits in Medical Negligence?

Another relaxation of the harshness of the Statute of Limitations is that time will be deemed not to run against a patient during any period in which they are deemed to be under a legal ‘disability.’

One important example of such a legal disability is where someone is under the age of eighteen. The effect of the rule is that a child will have two years from the date of their eighteenth birthday within which to commence proceedings for any medical negligence which they have been the victims of at any time during the first eighteen years of their lives.

Another disability which is recognised by the Statute of Limitations is when one is found to be legally of ‘unsound mind’ which might be rephrased as meaning lacking the fundamental cognitive abilities of your typical adult. Accordingly, any period during which an adult person is in an impaired mental state will not be included when calculating the two-year period.

For example, if an adult of otherwise normal mental ability was caused by the negligent actions of a medical practitioner to fall into a coma for several years, the two-year period would only start to run from the date when the patient came out of the coma and regained their normal faculties sufficiently to enable them to assemble and appreciate all of the information required to satisfy the date-of-knowledge test described above.

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*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