Whilst it’s unpleasant to think about being further injured by the medical professionals that are there to help you when you are hurt or unwell, it does happens from time to time.
The number of medical negligence claims has risen in the last 25 years with compensation pay-outs in the billions. If you or someone you know is considering a claim for medical negligence, it is important to understand the time limits for doing so.
These are often not as straightforward as you would think, for example, the time limit for pursuing a claim for damages in Scotland is three years from the date of incident or harm. In medical negligence claims, this can be tricky to establish as there are other factors taken into consideration.
Date of knowledge
The date of harm (the negligence itself) and the date of knowledge of the harm may very well and often are different. For example, if you underwent negligent surgery on 21 February 2018 but didn’t realise until 10 March 2019, it could be argued that your three year time limit to raise and serve a court action doesn’t expire until 10 March 2022 as opposed to 21 February 2021.
What does date of knowledge mean?
This is the date that you made, or should have reasonably made a connection or someone told you of the connection between your injury, pain and suffering and possible negligence.
If you have not raised and served a court action within the three year limitation period then your right to claim will be statute barred. This is why it is so important to seek legal advice as soon as you believe you may have suffered from medical negligence.
What factors can affect the date of knowledge?
There are many reasons why your date of knowledge of the harm may be far different to the date of the harm itself. Symptoms, pain and suffering may not begin for some time or there could be a delayed diagnosis.
If there is no confirmed date of knowledge in the medical history i.e. it wasn’t a medical professional who brought this to your attention, then the date of knowledge will come to the date you personally made the connection between your injury and possible negligence. This can be very tricky to pin down and will often take into account several factors including
- your mental capacity
- the significance of the alleged negligence
- who carried out the procedure
- when you ought to have had knowledge or made the connection.
When the three year time limit doesn’t strictly apply to the date of harm/date of knowledge
If the medical negligence involves a child, then the three year time limit does not start until the date of the child’s 16th birthday. For example, if a claim was being pursued for a child whose birthday is 10 September 2009, the time limit would not expire until 10 September 2027 regardless of the date of harm or knowledge of the harm.
Mental capacity and death
If the injured person lacks the mental capacity to bring a claim and has done so prior to or from the date of harm then it is accepted that the three year time limit will not expire until they regain capacity. If they are not expected to regain capacity then the time limit will never apply and a claim can be brought at any time.
If the injured person loses capacity after the date of harm, then the time limit applies as normal.
If the injured person sadly dies during the three year limitation period then the three years is extended to the date of death or their date of knowledge of harm, whichever is latest.
Can I argue the three year time limit?
The court has discretion over whether to allow a claim outwith the three year time limit under section 19 of the Prescription and Limitation (Scotland) Act 1973. However, this is rare and requires exceptional circumstances.
If you think you have been injured as a result of medical negligence, you can contact our specialist medical negligence team on 0800 988 8082 who would be happy to help.
Please remember that this information is broadly covering many complex limitation issues and as such, if you believe you or a family member has suffered from medical negligence then it is important that you seek legal advice right away to ensure that your claim falls within the parameters of the Prescription and Limitation (Scotland) Act 1973.