How quickly must I claim?
The law applicable is set out in the Limitation Act 1980, a statute so unclear as to have given rise to numerous interpretation disputes that have had to be decided by the courts.
In summary the position is that a Claimant has three years from the date of the error or three years from the date it was known or ought to have been known that a significant injury was attributable to an error.
When the injured patient is a child the 3 year period does not start to run until the age of 18. When a patient is mentally incapacitated and unable to manage their own affairs, time does not start to run at all and such a patient can claim many years later.
Lawyers refer to the three year period as the primary limitation period but, to be on the safe side, legal proceedings should be issued within three years from the date of injury.
Clients often approach Solicitors outside the primary limitation period because of a failure to appreciate that they have been injured or a failure to appreciate an injury may have resulted from a medical error. If that happens it is necessary to decide the point in time it was known or ought to have been known that a significant injury was attributable to an error.
What if the primary limitation period has expired and three years have passed since it was known, or ought to have been known, that a significant injury resulted from a medical error?
The answer is that the Court has a discretion to disapply the limitation period if it is considered fair and reasonable.
Defendants usually argue that it is unfair to disapply the limitation period because the quality of their evidence has been reduced by the passage of time. For example, the death of a key witness or the destruction of health records in accordance with normal disposal procedures might make it difficult for a hospital to answer specific allegations.
The best chance for a claimant to persuade the Court to disapply the limitation period in these circumstances is if the delay beyond three years is not too great and if all the key medical records and witnesses are still available.
It is better to seek legal advice early and well within three years of treatment resulting in an unexpected outcome.