Don't let the timer hit zero - or you could lose your ability to make a claim.
We see it time and time again. People with legitimate medical negligence cases but they are past their limitation period and therefore unable to make a claim.
It pays, literally, to know when your limitation period starts and stops.
Don’t be the person that couldn’t hold their doctor accountable because they ran out of time.
Every state has a law, known as the statute of limitation, that restricts the time a person who has suffered poor medical treatment has to sue.
There are a number of different time limitations, these include:
So the general rule for adults is you have 3 years from the date of the incident to begin court proceedings.
What most articles on time limits don't tell you is that you had to complete a number of important tasks BEFORE your begin court proceedings.
Different types of claims must abide by different pieces of legislation, but every claim must go through some sort of pre-court proceedings.
So, you need to have completed a number of tasks by the three-year mark for your claim to be valid.
These tasks include:
If you haven’t done all of the above by the third anniversary of the accident, you may be prevented from making a claim.
It’s a long list and if we are honest, it can take a little while to complete.
That’s why you will often hear these lawyers pleading for people to start their claim as early as possible.
There are exceptions to the rule which will cover later.
It’s easy to tell when your limitation period starts in a motor vehicle accident – it's the date of the accident.
But for medical negligence cases, that can be a bit ambiguous.
We are going to throw in some legal jargon – but bear with us – it will be quick!
According to the Limitations of Action Act 1974, Section 11, a claim for negligence or breach of duty “shall not be brought after the expiration of 3 years from the date on which the cause of action arose”.
Within medical negligence the “cause of action’ is the point at which the medical professional breached their duty of care.
Simplistically, the date that you discover negligence is the date that your time limitations start.
Or another way to put it, the date you are diagnosed is the date your limitation period starts
But each individual circumstance is taken at face value as to when their limitation period starts (see below for some examples).
It’s important to note that common sense prevails here.
If the negligence was clear at the time (i.e. incorrect amputation), the date that your limitation period starts is the date the medical professional made the mistake.
Susan discovered a lump in her armpit one day. She booked an appointment with her GP to have it checked.
At the appointment, the GP informed her it was likely a cyst and not to worry it would likely resolve itself. A few months later and Susan was back at her doctor.
The cyst hadn’t resolved. Again her doctor dismissed her concerns.
4 years passed and Susan had moved cities. Her lump was back and she attended a new doctor who decided to take a biopsy. She was diagnosed with Stage 3 Hodgkin Lymphoma.
The date that Susan discovered she had cancer is the date her limitation period effectively starts.
John went in for routine surgery to have his appendix removed. The surgery was rush and the surgeon left a scalpel inside when he closed the incision.
John continued on with life for 7 years until he started getting a sharp pain in his stomach. In exploratory testing, his GP discovered the leftover scalpel.
The date of that the GP told John of the rogue scalpel is the date that his limitation period starts.
It’s often unknown that is most medical negligence cases time limits have to be extended at the court’s discretion.
This is because under the narrow scope of the law the cause of action is the point at which the doctor has conducted in negligent behaviour.
However, this is not always known by the injured person for some time.
In this circumstance the limitation period is extended to allow the injured person time to make a claim.
So yes, in special circumstances extensions may be granted.
When deciding whether the patient can receive an extension, the courts will consider the following:
However, it is solely at the court’s discretion as to whether an extension should be granted.
Patients should not rely upon obtaining an extension, as they are not easily granted.
Starting the process of notifying the insurer can protect your legal rights to make a claim.
Consider starting a claim for compensation while you decide whether it’s an avenue that you wish to take.