Medical Negligence – Legal Time Limits

Time limits for starting an injury claim are set out in the Statute of Limitations legislation for all claims, including medical negligence claims. For the latter, there is a general rule that cases must be commenced within two years from the date of the alleged negligent act.

There are though exceptions to the general rule. This can arise where the injury caused only presents itself later, outside the two-year limit, and for this situation, the critical element is the ‘date of knowledge.’ So, in this case, the two-year period would run from the date the injured party became aware that they had suffered an injury and that the injury was caused by the negligence of a third party. To qualify for the exemption, the party must plead that they were unaware of the alleged negligence in the two-year period from the wrongful act.

What is ‘Date of Knowledge’?

In cases where on the date the accident occurred, the injuries are immediately obvious or noticeable, then the two-year rule will apply. But that is not always the case, particularly in illnesses which can take longer to become noticeable. In the latter cases, the important date as far as initiation of litigation is concerned, is the date the injury was discovered.

The protocols to extend the two-year rule also applies to children and people with intellectual issues. Different rules apply to children than adults. Here a person is considered a ‘child’ until their 18th birthday. Note the two-year rule runs from the date of their 18th birthday, but they may also take their case earlier by suing through their mother, father, or guardian.

Issuing Proceedings

Once legal proceedings have been issued and correctly served on the parties, the clock stops on the limitation period. If a person is considering making a claim, they should consult their solicitor early as there is much work to be done prior to the issuing of legal proceedings. It can take so long to get medical records and repeated efforts can be needed.

In pursuing a medical negligence claim, your solicitor will request the medical records, which can take time. Then on receipt of them, your solicitor will need to obtain an independent medical opinion on the injury/illness and this person will be your expert witness.

There may be other witnesses to be considered by the legal team so all these matters must be reviewed by your legal team before legal proceedings can be issued. The two-year time limit sounds long but really isn’t for this type of legal matter. Many times records will not come for months and months and so steps have be undertaken for their release which is a time consuming process also.