Can you claim for Medical Negligence after three years?
You may have heard that there is a three year limit to making a claim for Medical Negligence, and for most cases, this is true. There are various reasons for this rule, including that with the passage of time, it may be more difficult to gather evidence.
So, if more than three years has passed since you suffered Medical Negligence, are you still able to pursue a claim?
In fact, you might be able to. The three year rule has a number of qualifications and exceptions, and it is not always simple to say when the three year time limit runs out. So, even if more than three years have passed do not be afraid to consult a solicitor.
Date of knowledge
Sometimes, it is immediately apparent that Medical Negligence has taken place. Perhaps a routine operation has left you incapacitated, you immediately suffer pain which does not go away, or you are discharged from hospital too early and then suffer from complications.
In these cases, the three year time limit would probably start from when you had the medical treatment or received medical care, but what if the problem does not come to light for some time? It could be that an incorrect diagnosis was made, and it was only later that you were told what the actual cause of your symptoms is. Sometimes, you may think that a mistake was made, but only find out later that it has made your condition worse. In very rare cases, there may have been a deliberate attempt to hide what had happened. In these circumstances, it could be more than three years before you discover the issue.
This isn’t a problem, though. The three year period officially starts from the “date of knowledge” — that is the point at which you could reasonably be expected to know enough about the issue and realise that there might be a claim of negligence. You do not have to know everything, and often the Court will look at whether you knew enough to start asking more questions. Sometimes this might mean asking your doctor questions if treatment has not worked. In other cases, the question may be at what point would it have been reasonable for you to talk to a solicitor.
The important point is that you should not assume that you cannot claim just because 3 years have already passed since you were first treated.
Medical negligence affecting a child
In short, the three year time limit only starts to run on the child’s 18th birthday, no matter when the negligence happened or when the problem became clear.
While someone else, usually a parent, can act on a child’s behalf and start a claim, anyone younger than 18 years old cannot start a legal claim themselves. Likewise, it would be difficult for a child to instruct solicitors without someone else acting for them.
For this reason, the earliest that the three year time limit can start is on their 18th birthday, as that is the first day they could have personally started the process of bringing a claim. They would then have three years from that point — i.e. up to and including the day before their 21st birthday — to register the claim at Court.
The rules about date of knowledge still apply, though. If a child is too young to understand what happened at the time and are not informed later, they may have limited information, even when they become 18 years old. The question then would be: When did they find out what happened? Or when should they have started to ask questions?
Finally, it is important to remember that while the legal time limit may not prevent a claim, it may still be difficult to prove a claim many years later. Generally, the earlier that a claim is investigated and evidence obtained, the better.
In the same way that the time limit does not apply to a child, the time limit also does not apply to an adult if they do not have the mental capacity to deal with their own legal affairs.
Broadly, the question is whether someone is capable of instructing a solicitor, i.e. giving the solicitor information about what has happened, listening to and understanding what the solicitor says and then whether they are able to make decisions based on the solicitor’s advice. The difficulties may have been caused by the negligence itself, or they may have been present before. Either way, the three-year time limit does not apply while the person is unable to deal with legal matters themselves.
Thankfully, for some people this is only temporary. If someone recovers and becomes able to understand things again, the three-year time limit starts from that point.
The question of whether someone does have the capacity to manage their own legal affairs can be a very difficult one, and we would always recommend that you speak to solicitors well before the end of the three-year time limit even if you think it might not apply to you or a family member.
Claiming in the case of death
Unfortunately, the rules are particularly complicated when someone has died, whether this was as a result of the negligence, or not. It may be that the person was already bringing a claim, or perhaps the family are considering bringing a claim. In general, if a claim can be made the three year time limit starts from the date of death, though in unusual cases it may be later.
Even if none of the above exceptions to the three year time limit apply, the court may be willing to take special circumstances into account and allow the claim to go ahead even after the three-year time limit has passed.
However, interpretation of the situation will be for the court to decide, and there would be no guarantee that the Court would allow the claim to proceed.
In fact, the best approach is to start the process as early as you possibly can; if you think something may have gone wrong, it is always better to speak to solicitors sooner rather than later, and this should give you the best chance of successfully proving a claim.
For large sums of compensation we can also offer guidance on investments and managing your future needs.
Hopefully you will never need to go through this process. If you feel you have suffered from Medical Negligence, get in touch with us – our specialist team of Medical Negligence solicitors would be very happy to assist you.