Limitation in clinical negligence claims

Lawyers can have a tendency to use words which make no sense to clinicians. One of the most frequently referred to terms in clinical negligence claims is that of “limitation” or the “limitation period”. This is a crucial term, of which clinicians, finance directors, hospital managers and clinical governance staff alike all need to have a good grasp.

Essentially, this is as the period after which it is not possible to bring a legal claim for compensation arising from negligence. The general rule set out in the Limitation Act 1980 is that the appropriate limitation period is three years from the date of the injury. Unfortunately, this is not the end of matters.

Various factors can extend the limitation period as follows:

Patient is a Minor

The limitation clock does not start running for a minor until they reach the age of majority (18 years). Therefore, the limitation period would not expire until the day after their 21st birthday.

What does this mean?

If a patient is a minor and they are injured as a consequence of medical malpractice there could be a long gap between the right to claim arising and actually bringing the claim. It is therefore essential that you check that your insurance policy provides for this eventuality; as most professional indemnity insurance policies are “claims made” policies – ie the policy which responds is that which you have in place when the claim comes in and not the one you had when the claim occurred - you need to ensure that all the correct checks and balances are in place to ensure there is no gap in your cover for the years you have been practicing. It also means you have to make sure you buy adequate cover for when you retire.

Relevant “knowledge”

This is when the patient does not know that they have been injured by the negligence of another until sometime after the event. This could be months or years. Time will not start to run for limitation purposes, until they acquire that knowledge, assuming an average person would make reasonable enquiries to acquire that knowledge. Often the knowledge crystalizes if and when the patient speaks to a different clinician about their condition because they continue to suffer or start to suffer symptoms.

What does this mean?

Immediate knowledge is when there is an obvious problem which the patient notices themselves or they are told about immediately during a duty of candour conversation. For example, the patient undergoes an operation and wrong site surgery is performed (sadly far more frequent than you might think). The patient would immediately know who was responsible for the error, and how and why it happened, and what impact – if any – it had. At that point the 3 year countdown in which to bring a claim would begin.

However, if the damage is latent, perhaps a missed diagnosis or misleading advice lack of knowledge, it will only be a later examination or opinion which reveals the problem, which would prompt further enquiries to establish ”knowledge”. Once knowledge is acquired, the three year limitation clock starts to run.

Inability to manage personal affairs

This can happen when a patient suffers a brain injury. That person will be classified as having a disability and as such there is no deadline initially. This is because they would not be able to acquire knowledge themselves.

What does this mean?

If a person is under a disability of unsound mind and therefore incapable of managing and administering his property and affairs by reason of mental disorder within the meaning of the Mental Health Act 1983 (but not necessarily sectioned) then the limitation period start to run in relation to a claim for personal injury 3 years from the date when a Claimant ceases to be under a disability or dies (whichever is the sooner). If a person is of sound mind when the right of action accrues, but subsequently becomes of unsound mind, crucially, the incapacity does not prevent the ordinary limitation period from running.

Death of Claimant

If the injured person dies before the expiry of the 3 year period applicable to an action by him, the limitation period applicable to an action on behalf of his estate is 3 years from the date of the death or from the date of the personal representative’s knowledge, whichever is the later. If it can be said that the claimant had knowledge of a claim for more than 3 years prior to death then limitation could have expired.

What does this mean?

If a patient dies, do not assume the opportunity to claim goes with them.

Fatal Accidents

The limitation period for bringing a claim on behalf of the dependants under the Fatal Accidents Act 1976 is 3 years from the date of death or from the date of knowledge of the person for whose benefit the action is brought, whichever is the later. (The rules in relation to children and mental incapacity equally apply here).

What does this mean?

Again, you need to factor in various calculations in order to work out who might be entitled to bring a claim.

Overriding The Time Limit

This can come as a big shock but is very common and very important to know about. Surprising news for many clinicians is that where the limitation period has expired the courts retain the discretion (on application by a claimant) to dis-apply the limitation period where it is considered reasonable to do so.

What does this mean?

The Court will consider all matters in the round and work out whether there has been a good reason for the delay in starting the proceedings. Such reasons will include difficulty obtaining the medical records, problems with funding, witnesses or experts being very busy or a bit slow to respond. At all points the Court will consider whether allowing the Trial to go ahead in these circumstances of delay would be prejudicial. The truth is that Courts rarely deem it prejudicial and almost exclusively prefer to give the benefit of the doubt to the patients in order to give them the opportunity to bring their claim. It is only likely to be prejudicial, and therefore not feasible to extend limitation if a fair trial has been prejudiced by delay. Examples would include the surgeon developing dementia in the interim, the records being lost, a crucial witness dying or if the claim is highly speculative.

Ultimately then, limitation is not something that can be easily defined or taken for granted. The complexities surrounding the topic illustrate why, as soon as you are aware of an incident which may give rise to a claim or you are notified of a claim, you need to notify the matter to your indemnity provider to ensure that they guide you through what can be a very tricky area, thereby taking some of the pressure off you.