Are there time limits for medical negligence claims in Scotland?
For personal injury claims in Scotland, the time limit for pursuing a claim for damages is three years from the date of incident or harm. However, in medical negligence compensation claims, this can be tricky to establish as there are other factors taken into consideration.
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 and needs a medical negligence solicitor in Scotland, it is important to understand the time limits for doing so.
If you are unable to settle your claim within the time limit, you must raise a court action before the time limit runs out. Otherwise, you might lose the right to claim.
In this guide, we provide answers to some of the most frequently asked questions regarding time limits in medical negligence claims.
Please be aware that every case is different. If you are unsure whether you have a claim, it is important to discuss this with a specialist personal injury solicitor.
Do not hesitate to contact us for advice and support with your case. Call us on 0800 988 8082 today or complete our online contact form.
The date of harm (the negligence itself) and the date of knowledge of the harm may very well and often be 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.
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 medical negligence.
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 be 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.
If 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 on behalf of a child whose birth date 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.
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.
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.
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If you have sustained an injury and think you may have a claim, contact us to find out if you may be entitled to compensation.
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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 you must seek legal advice right away to ensure that your claim falls within the parameters of the Prescription and Limitation (Scotland) Act 1973.