When Is It Too Late To Make A Claim For Medical Negligence?

Recently we wrote about the First Steps To Making A Claim For Medical Negligence and alluded to the fact that strict time limits were in place if you were considering making a claim for Medical Negligence.  In this blog we will explore what these limits are in more detail.

If you are currently suffering from a medical condition and believe it was as a result of negligence by a medical professional, you may not know what to do.  You may feel that if you "give it a few months" the symptoms might go away, or on the other hand, how could you possibly question the opinion of such an educated and experienced medical professional?

The unfortunate fact of life is that mistakes can and do happen.  Medical professionals are human like the rest of us and with the sheer volume of work they have to contend with and the pressures they have to face, unfortunately mistakes can crop up from time to time.

If you are unfortunate and find yourself in a situation such as this, perhaps in a lot of physical and emotional pain, hopefully any compensation you receive will help you to find treatment and/ or relief to rectify the situation and improve your well being.  

Two Years From Date Of Injury
Medical Negligence falls into the same category of law as Personal Injury and as such the “Civil Liability and Court Act 2004” dictates that the time limit for issuing a claim for medical negligence is two years from the date of injury.

Whilst it may seem entirely reasonable to assume that a person suffering from what they perceive to be medical negligence will be able to submit a claim within two years of it occurring, this can actually cause problems when, for example, someone has been prescribed the wrong course of treatment or that it does not initially come to light that the injury caused has been negligent.

Date Of Knowledge
Under circumstances such as these the principle of “Date of Knowledge” as described in “The Statute Of Limitations Act” allows for the two year time limit to not commence until the date that claimant first becomes aware of the injury.

Whilst this is clearly an improvement upon two years from the incident occurring there is still concern as to what exactly defines the claimant’s ‘Date of Knowledge’.

Is it when they first suspect something may be wrong; when they read something on social media; when they issue a letter of complaint to the hospital; or when a medical expert’s report is received detailing that in their view the treatment was negligent?

Date Of Knowledge Test
The date of knowledge test will be deemed the date upon which the person first had knowledge of key facts, such as:

• they realise they have been injured;
• the alleged injury is significant;
• the alleged injury was caused by someone’s negligence, nuisance or breach of duty;
• the name of the person alleged to have caused the injury; and
• if the person(s)/ organisation(s) being sued are not the person alleged to have caused the injury that they are named and the legal basis for this has been identified.
  

Only when all of these these facts have been established can the ‘Date of Knowledge’ be established.

Time Is Of The Essence
Whilst two years may seem a long time, in reality this can be seriously tested for a number of reasons: 

• the patient may need time to recover sufficiently to be able to make a decision and speak to their solicitor.
• the patient may initially be reluctant to come forward with their complaint and may then take several months deliberating over whether or not they should make a claim.
• it can take many months for a hospital to produce a patient’s medical records.
• a medical expert may also take a number of months to review the notes and to prepare a report for their solicitor. 

It would not be uncommon for it to take more than a year for your solicitor to receive your medical records, appoint a medical expert and then receive their report.  Whilst a client may feel that their solicitor is not progressing things quickly enough, the situation is usually out of their hands completely.

No matter the cause, these delays obviously put pressure on a claimant to move quickly with something which they may initially be reluctant to pursue.

If you feel you have suffered as a result of medical negligence it is understandable that you may initially be reluctant to do something about it.  Even if at a later date you decide not to take things forward and make a claim, you should still speak to a solicitor early so that you can understand your position and clarify the time frames within which you need to operate.

Armed with this knowledge you should have enough information to decide on whether or not to take things forward and the timeframes under which you need to operate.

If you would like to explore your potential claim for medical negligence further and meet with a solicitor to understand the options available to you, please contact Martin O'Carroll, a partner in our Litigation department.