A clinical negligence claim (sometimes known as a medical negligence claim) occurs when a patient makes a claim against their medical practitioner or hospital (or both) for compensation due to an act or acts of negligence incurred during their medical care.
There are however specific deadlines within which a claim for clinical negligence must be made. A claim must be brought within these deadlines, otherwise the claim may be “statute barred” and there could be no compensation awarded following the negligence.
The claim is brought in time when court proceedings are started by sending a Claim Form to court. The Claim Form is a form that you can download online in which the claimant sets out the basic facts of the matter and the allegations of negligence (i.e. the errors made). The Claim Form should only be sent to court once the relevant evidence has been compiled.
It is crucial, therefore that clients speak to a solicitor in relation to their claim well before the limitation period is set to expire.
General time limits
The general time limit for bringing clinical negligence claims is 3 years from the date of the alleged negligence.
However, there are exceptions to this general time limit where the period to bring a claim is not 3 years from the date of negligence. We set out these exceptions below.
Date of knowledge
Where the date of the alleged negligence is different to the individual’s knowledge of the alleged negligence (or is different to the period of time when the claimant would reasonably have been expected to know they suffered a serious injury following the act of a clinician), the limitation period expires 3 years following the date of knowledge. For example, patients may only later discover that an injury on an X-ray was missed.
Children
Children under the age of 18 cannot bring a clinical negligence claim themselves. However, a “Litigation Friend” (typically a parent or close relative) can bring a claim on their behalf.
Once an individual turns 18 they can bring a claim for any clinical negligence they suffered from prior to the age of 18 so long as a Litigation Friend has not previously made a claim concerning the particular negligence. The individual has until their 21st birthday (i.e. 3 years after the turning 18) within which to bring the claim for clinical negligence they suffered from prior to the age of 18 (unless the date of knowledge is after their 21st birthday, in which case the limitation period expires 3 years after the date of knowledge).
Mental capacity
Where a person is incapable of managing and administering property and affairs by reason of a mental disability, time starts to run when the individual recovers capacity.
Death
The deceased’s estate has 3 years from either the date of death or later date of knowledge of the personal representative or dependent.
Extending the time limit
If the limitation period has not yet expired, agreement can be made between the claimant and defendant about extending the limitation period. However, neither party is compelled to agree to the limitation extension.
If the limitation period has expired, the claimant can apply to the court for discretion to allow the claim to proceed. However, certain factors will be considered, including the length of and reason for the delay in starting proceedings, the effect on the strength of the evidence and the parties’ conduct. It is rare that the court will agree to extend the limitation period.
Speak to one of our specialist solicitors
Our lawyers are specialists in the field of clinical negligence law. If you have concerns in relation to medical treatment you or a loved one received or have questions in relation to time limits in clinical negligence cases, please contact us on 01865 311133 or fill in the online form linked here.
About the authors
David Black is a partner based in our Oxford office, having practised as a solicitor assisting those who have received substandard medical treatment for over 30 years.
Tim Fraser is a solicitor based in our Oxford office and is a specialist in clinical negligence law.
