Time Limit On A Medical Negligence Claim
What is the time frame for making a claim?
Generally, you will have a 3 year limitation period in which to bring a claim for medical malpractice. This runs either from the date of the negligent treatment or the ‘date of knowledge’ that the negligent treatment caused the injury or illness incurred.
There are, however, a few exceptions to this rule:
In cases involving children under the age of 18, their limitation period will not begin to run until their 18th birthday and so it will expire on their 21st birthday. Children do not have legal capacity.
Lack of mental capacity :
Where a person does not have mental capacity due to a mental disability, their limitation period will not begin to run until they regain that capacity. If they do not regain their capacity, then they will never be subject to a limitation period and can bring a claim at any time. A person without mental capacity does not have legal capacity.
Both children and claimants who lack the mental capacity to bring a claim themselves will be represented by a ‘Litigation Friend’, who will bring a claim forward and act on their behalf whilst they do not have legal capacity. If they gain or regain their legal capacity during the process of a claim, the litigation friend must stop acting on their behalf.
The limitation date is important because if court proceedings to pursue your claim are not issued before that date, you may lose your right of action with respect to your claim forever, except in exceptional circumstances.
Time limits for claims on behalf of a deceased person
Claims which are made of behalf of a deceased person have different rules that apply to them with regard to limitation. If the injured person dies within the original 3 year limitation period of the injury or illness, the limitation period will run from:
- the date of death; or
- the date of knowledge of either:
- the personal representative; or
- the person for whose benefit the claim is brought;
whichever is the later to occur.
If a claim is not pursued within the primary 3 year limitation period, then it will much more difficult to pursue and indeed it may not be possible to pursue the claim at all.
When relying on a ‘date of knowledge’ to begin the limitation period, this can often have complications and is regularly disputed by medical practitioners or NHS Trusts. It is important to seek legal advice as soon as possible.
Choosing the right solicitor is essential when you are faced with a case of medical negligence. Contact us today for a free initial consultation with one of our expert medical negligence solicitors.