The limitation period is the time frame in which a person should start proceedings for the injury they have sustained. It is generally three years and if a claim is not brought within this time, then the claim cannot proceed, save for certain circumstances.
The law on limitation is set out in the Limitation Act 1980 which states that the date of limitation can be worked out in two ways. The first is using the date when the injury occurred. However, using only this method in clinical negligence claims is difficult, as you may not know that the care you received was negligent until sometime afterwards.
A prime example of how this principal works is in the misdiagnosis of cancer. Often it is not known that there were missed opportunities to spot and treat a tumour until it has become terminal or requires more aggressive treatment. In this scenario the time limit is three years from the date when you were aware of the negligence i.e. the missed opportunity. This is referred to as the date of knowledge and is the second date from which the limitation period can be calculated. Generally speaking, the later of the two dates will apply.
What happens in fatal cases?
In fatal cases you have three years to make a claim starting from the date your loved one has died.
If your loved one was already in the process of making a claim when they died, then the three-year limit starts again on their death, giving you time to pursue legal action.
Bringing a claim on behalf of a child?
There is a clear distinction between limitation periods for adults and children. A child, in the eyes of the law, is any person under the age of 18 and limitation does not begin to run until the child reaches the age of 18. Therefore, you have until the child’s 21st birthday to bring the claim.
If a claim is to be brought for injuries suffered by a child in an accident, then a Litigation Friend needs to be appointed to represent them. Normally this person will be a parent or close family member.
Can we bring a claim which is out of time?
If a claim is brought outside of the three-year period from the date of injury or the deemed date of knowledge, then you can still ask the Court to allow the claim to proceed using the discretion granted under Section 33 of the Limitation Act 1980.
However, to succeed in such claims, you would have to show that there was no evidential prejudice to the defendant in defending the claim out of time. It is often the case that the Doctor has left the Hospital Trust or the records have been destroyed so the Trust cannot properly investigate a claim that is brought out of time. This also applies where there has been such a long time since the act of negligence, that the passage of time means that the Doctors and Clinical staff can’t recall the patient or the details of what happened beyond sometimes scanty medical records.
A recent example of where a person tried to pursue a claim out of time is the case of Norris -v- Secretary of State for Health (2019).
In this case the claim related to treatment in September 2009, but the claim was not pursued until 2017. The Court concluded that the allowing the claim to proceed was unfair to the Defendant Trust because the clinician against whom many of the allegations were targeted had died, and none of the clinicians who remained employed could recall the patient. There was also an issue with the crucial section of the medical notes having gone missing.
The Solicitors acting for the Claimant’s submitted that the claim should be allowed to proceed because of her difficult personal circumstances.
However, the Judge concluded that the delay in issuing proceedings, even based on the Claimant’s pleaded date of knowledge, was significant and not justifiable. This coupled with the prejudice to the Defendant and the low value of the claim resulted in the Judge not exercising his discretion under Section 33.
It is important that a claim is pursued within the three year time limit. If you have concerns about the standard of the treatment received, it is useful to discuss those with an experienced solicitor sooner rather than later.
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2023