All types of legal claim, including medical negligence, have time limits attached to them.
Limitation can be complex in medical negligence claims.
The basic starting point is that a case should be brought within 3 years of when the negligence took place and you were injured.
It may be the case, however, that you suffered an injury but were not aware of it at the time.
In those circumstances, an injured patient has 3 years to bring a claim, not from when the negligence took place or the injury arose, but from when he/she had knowledge of not only the injury but that it was significant and attributable to acts or omissions constituting negligence on the part of an identifiable Defendant.
This may mean that you can bring a case more than three years after the negligence/injury.
It is important to note that you must act reasonably in this regard.
The Court will treat you as having the knowledge that you would reasonably have upon proper and reasonable enquiry.
Further, and in any event, even if you are beyond the 3 year time limit in terms of the date of the negligence/injury and as regards knowledge, the Court still has an overriding discretion, pursuant to Section 33 of the Limitation Act 1980, to allow a late claim, if it is ‘equitable’ to do so. The Court has a wide discretion and will take into account all the circumstances of the case including the length and reasons for the delay and how the parties have conducted themselves. In medical cases the Court is likely to have particular regard to whether the passage of time has prejudiced the Defendant’s ability to defend the case. Often, it will not have done so – especially if medical records from the time of your treatment are still available.
Different rules may apply in certain situations – e.g. fatalities, cases brought on behalf of children, claims by those with a disability etc.
The most important thing is to seek expert advice quickly and not ‘sleep on your rights’.
We will always assess limitation as part of our free initial assessment of your case.