Medical Negligence Time Limits

If you, or a loved one, are in the unfortunate situation of needing to make a medical negligence claim, then we are here to help. However, first, you need to know the medical negligence time limit and the exceptions if the deadline is missed.

What Is The Time Limit For Medical Negligence Claims?

As a general rule a claimant has 3 years to start a civil claim for compensation arising from negligent medical treatment.
This page explains:

• exemptions to the rules
• the difficulty trying to pursue a claim after the limitation expires
• why there is a medical negligence time limit in the UK
• how much you could claim
• how to start your claim with Fletchers Solicitors

The 3 years Negligence Limitation rule is found in the Limitation Act, 1980. If a claim is not formally started at Court (by issuing a claim form) within the limitation period, then a potential claimant is usually statute barred from pursuing the claim. Expiry of the Limitation period is a defence that a Hospital may well choose to use to stop a Claimant succeeding with a case.

When Does the 3-Year Medical Negligence Time Limit Start?

There are two different rules for when the 3 years Negligence Limitation Period starts:

Date of Injury

From the date the injury, caused by sub-standard negligent treatment, occurred. For example, if during surgery on 15 July 2014, a patient has the wrong leg amputated, the patient will be aware of the negligent treatment and its consequences straight away. The Limitation period would, therefore, expire on the 3-year anniversary of the date of the negligent surgery: 15 July 2017.

Date of Knowledge of Injury

It may not always be obvious that a patient has suffered an injury from sub-standard medical treatment. When this situation arises, a second Limitation Period rule applies. This rule asks when the Claimant should have realised that sub-standard treatment likely caused their injury.

For example, a faulty hip replacement operation on 15 May 2014 may cause years of pain before a patient discovers the problem later on, say, on 15 September 2017.

A patient should obtain knowledge that something has gone wrong with their treatment by the earliest date they might have been reasonably expected to find out what the problem is. According to the Limitation Act, knowledge requires the following:

1. Facts about the damage caused by the defect. These facts would lead a reasonable person to consider the injury sufficiently serious to consider a claim for compensation.

2. That the injury was caused (wholly or partly) by specific defective treatment.

3. Knowing the identity of the potential defendant(s).

The test is objective. It therefore needs careful assessment of what knowledge the average reasonable person would have been expected to acquire. They would gather this knowledge from the facts known and ascertained, including from medical and other expert practitioners . This can often be complex so it is important that you speak with our experienced lawyers to assist you.

To illustrate this second rule of the medical negligence time limit for claims, we can return to the patient with the faulty hip replacement following surgery on 15 May 2014.

The patient was only told about the problem by their doctors on 15 September 2017. However, it may be that the Court would deem their date of knowledge at an earlier date. This could be the case if it was thought that a reasonable person might have sought medical negligence advice earlier because of their pain, discomfort, and knowledge.

What knowledge a patient should have reasonably known at a particular stage is objective. Ultimately, a Court will determine this in the event that a Defendant raises a limitation argument as a defence to a medical negligence claim. It is a contentious area of law. Therefore, it requires careful consideration and analysis of the specific circumstances in light of case law and the relevant legislation.

As a general rule, if you have a suspicion of poor treatment, speak to our medical negligence team straight away.

Exceptions to the Medical Negligence Time Limit

Are There Special Medical Negligence Time Limits For Children?

Yes, the 3 years limitation period does not apply to children in the same way as adults. Only when a child reaches 18 years’ of age does the 3 years limitation period to start. For example, if a child suffers a birth injury, the medical negligence time limit to start a claim at Court will expire on their 21st birthday.

This rule is also subject to:

● the date of knowledge test (when did a patient reasonably become aware of an injury stemming from sub-standard treatment?)
● whether they have mental capacity (see below).

Are There Special Medical Negligence Time Limits For People Without Mental Capacity?

Yes, if an adult does not have mental capacity the 3 years limitation period does not apply. The medical malpractice time limit only becomes relevant if mental capacity is regained. The 3 years’ period will start from this point.

It is often necessary to obtain expert medical input to evidence a lack of mental capacity. This is particularly likely where mental capacity may come and go and the limitation period is not clear.

What Is the Medical Negligence Time Limit When Someone Has Died?

Fatal accident claims pursued by the Estate or dependents of the Deceased must be started at Court within 3 years of the date of death. Alternatively, they can start within 3 years from when the family should have had reasonable knowledge that the death was linked with specific negligent treatment.

A fatal accidents claim cannot be made if the Deceased’s own claim was statute barred before their death. For example, if the cause of the Deceased’s death was poor medical treatment that happened more than 3 years before their death, and the limitation period to start a claim has expired, a fatal accidents claim is very unlikely to be successful. (This example leaves aside any more complicated arguments about date of knowledge – see above.)

If, however, the poor medical treatment occurred 2 years before the Deceased’s death, the claim will not be statute barred. The Deceased’s family will usually have a full 3 years from the date of the Deceased’s death. Alternatively, they will have 3 years from the date when they should have reasonably had knowledge of poor treatment and the death to start a fatal accidents claim.

For example, if Stephen died on 10 August 2017 the Negligence claim time limit would be 3 years’ from this date, 10 August 2020. This area can again be a complex issue. Our team of specialist medical negligence lawyers are very experienced and will be happy to carefully work through this with you.

What Happens If You Miss the Medical Negligence Time Limit Deadline?

Limitation is a defence to a civil claim which ultimately the Defendant can decide not to plead. Even if a claim is statute barred, the Court does have some discretion to disapply the limitation period.
However, this is only the case if:

● the claimant can show compelling reasons to explain the delay

● the claimant can provide evidence to support their claim

● the Court is satisfied that the Defendant will not be prejudiced and there will be a fair trial

Irrespective of the possibility of some Court discretion, solicitors will generally be prevented from taking on statute barred cases. This is because it is unlikely that limitation will be disapplied (save for very exceptional circumstances). This will undermine almost all solicitors’ risk assessment policies.

Again, the key is to speak to our medical negligence team as soon as you can.

What Happens If Negligence Is Discovered Years Later?

Sometimes an injury is not discovered until years after surgery or treatment. The Limitation Act recognises that this may happen. It allows people to pursue claims so long as they can satisfy the date of knowledge test (see above) that they only became aware of their injury from suspected sub-standard treatment within the last 3 years. A medical negligence claim is, however, likely to be statute barred if this test cannot be satisfied. This is especially likely in the situation where someone has not pursued a known injury in 3 years.

Why Is There a Negligence Limitation Period in the UK?

In our opinion, the 3 years Limitation Period exists to protect Hospitals and Doctors from Claimants bringing medical negligence cases years and years after their original treatment. The onus is on a patient to be aware of their legal rights and to pursue a compensation claim within the set 3 years.

How Much Can You Get for Medical Negligence?

It is difficult to provide an exact figure of how much medical negligence compensation you may receive from a claim. This is because every claim is unique and will depend on several factors such as the complexity of the claim and how the negligence has impacted your life.

How Do I Claim for Medical Negligence?

Contact our team of solicitors before the expiry of the limitation period. If we can assist with your claim we can talk to the Defendant or, if necessary, issue your claim at Court. This way, your negligence claim is protected from a limitation defence.

We have a wealth of experience in successfully representing clients throughout their claims and so we understand how traumatic this process can be. Our expert team of solicitors can be by your side every step of the way.

We will guide you through your medical negligence claim and represent you to make sure that you get the best possible result.

Before reaching eighteen, a medical negligence claim can be filed on the child’s behalf by a responsible adult.