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What Is the Time Limit on a Medical Negligence Claim?
Medical negligence refers to receiving substandard medical care that has made a medical condition worse, caused an injury, or even death. There are plenty of ways that medical negligence can occur including surgical errors, incorrect treatment, or misdiagnosis.
If you’ve experienced medical negligence, you have the right to make a medical negligence claim. It is advisable to make a claim as soon as possible because there are certain time limits, and it can take a long time to settle such claims, depending on the circumstances.
In this article, we explore the time limits on a medical negligence claim including the exceptions and how long it may take to receive compensation. If you require assistance with a claim, please get in touch with our medical negligence solicitors.
What is the medical negligence limitation period?
According to the Limitation Act 1980, the medical negligence limitation period is 3 years. Unless a formal claim is started with the time frame the individual no longer has the right to pursue the claim, under most circumstances.
If you would like to make a claim it is advisable to proceed as soon as possible. Delaying the process could compromise the success of your claim in some cases.
When does the three-year time limit begin?
The time limit on a medical negligence claim either begins on the date of the injury or the date of knowledge of the injury.
In many instances, patients will be aware of the injury right after it happens, meaning that they are able to proceed with a medical negligence claim without delay. In other instances, the injury may not be known right away, it is not always immediately obvious that a patient has received substandard treatment.
Are there exceptions?
Yes, the time limit on a medical negligence claim does not apply under all circumstances. The following exceptions are made with regard to medical negligence claims:
The claimant is a child
If the person who has experienced medical negligence is under 18 years old. When the individual reaches 18 years old, only then does the 3-year time limit begin. This means that the person then has until they reach 21 years old to make a claim.
Adults who lack mental capacity
If an adult lacks mental capacity and they need to make a medical negligence claim, no time limit applies. This may include adults who have conditions like:
- Disability due to a mental illness
- Brain damage
- Development disorders or certain learning difficulties
These individuals are unlikely to be able to handle their legal affairs, which is likely to delay them from making a claim. If the person lacking mental capacity recovers, the three-time limit on a medical negligence claim will start from their recovery date.
At the discretion of the Court
The Court has the power to make other exceptions with regard to the time limits on medical negligence claims. If the time limit has passed the Court may choose to disregard the time limit, usually if the individual can explain the delay with valid reasons.
If the Court believes that the trial will be fair, and that the person will remain unprejudiced, they may decide to waive the time limit. Regardless, the Court does have limited discretion to extend the time frame.
If your medical negligence incident was over three years ago and you would like to pursue your claim, get in touch with our medical negligence solicitors to see how we could help. We will be able to review the details of your case and support you to apply for the Courts discretion and waive the time limit if possible.
What is the medical negligence limitation period when someone has died?
Unfortunately in some cases, medical negligence can be fatal. This might be the case if a patient’s serious symptoms were not properly handled, or if they had an operation during which medical mistakes made their condition worse.
If a person has died as a result of medical negligence, their family has 3 years from their death to pursue a claim. If you have sadly lost someone due to medical negligence, our lawyers at Devonalds can offer sensitive and practical support.
What is the date of knowledge?
The date of knowledge refers to the date that the person realised that they had experienced a medical negligence injury. It means that the person has three years from the date they discovered the injury to make a claim.
The date of knowledge is used because a person may not be aware that they have experienced medical negligence right away, especially if their injury or illness hasn’t been properly treated or has been misdiagnosed.
According to the Limitation Act 1980, the person is deemed to have knowledge of medical negligence when:
- They find out that they have experienced a significant injury
- They realise that this injury is attributed to the actions of a medical professional
- The person can identify the defendant
Why is there a time limit on making medical negligence claims?
There are time limits on medical negligence claims to ensure that the case is presented fairly. The three-year time period is intended to provide a reasonable amount to make a claim. As time goes on, it is fair to assume that evidence may become destroyed, lost, or that the individuals and witnesses involved may not remember what happened so clearly.
Where claims are made promptly, the Court can get a clear picture of the case and it is more likely that the claimant will be successful in the pursuit of their claim.
Is there any way around the medical negligence limitation period?
Yes, there is a way around the medical negligence limitation period. If the child is under the age of 18 years old, the time limit on a medical negligence claim will not apply until they reach 18 years old. When the person turns 18, they will have three years to make a claim. There is also no medical negligence time limit for adults who lack mental capacity.
Depending on the circumstances of the case, the Court may waive the time limit at their discretion if there is a valid reason to do so.
The Court has discretion as according to section 33 of the Limitation Act. Under this section they may choose to disapply the time limitation. Do to so the Court needs to consider the matters clarified in section 33, and the case itself.
What does the Court consider when disapplying the medical negligence time limits?
Under section 33 of the Limitations Act, the Court will consider:
- The particular reasons for the delay, and the length of the delay
- If the evidence will be less convincing than if the claim was brought about earlier, and to what extent
- The actions of the defendant, for instance if they adequately responded to requests made by the claimant
- Any disability that the claimant experience, and for how long the disability lasted
- What the claimant did to get legal, medical, or other professional advice related to their circumstances
How long do medical negligence claims take in the UK?
The length of time that it takes to settle a medical negligence claim will vary depending on the particulars of the case. If the defendant admits liability, and the case is straightforward, it may take approximately 12 months.
If the defendant does not admit liability, and the case is more complicated, it may take several years to settle. For cases that take longer to settle our medical negligence solicitors will attempt to secure interim payments where possible.
What is the process of making a medical negligence claim?
Medical negligence claims can take a long time to settle because there are various stages of the process. The stages of making a medical negligence claim are as follows:
- Making contact with a solicitor who can initially assess the specifics of your case
- Getting advice on funding options, for instance, some clients may be eligible for legal aid
- The medical negligence solicitor will review the patients’ medical records and consult medical professionals as necessary
- The solicitor will work on building the case, seeking to prove that the treatment was substandard and involved a breach of care, and that harm was caused to the claimant as a result
- At this stage the lawyer will present the case to the defendant, and pursue a settlement
- Where claims cannot be settled out of Court, the solicitor will support the claimant to prepare for Court processes
Contact our medical negligence solicitors at Devonalds
If you’ve experienced an injury due to medical negligence and you would like to make a claim, please contact our solicitors at Devonalds. Our team can discuss the process with you in detail. You can contact us in Bridgend, Pontypridd, Talbot Green, Tonypandy, Tylorstown, or Treorchy.