How do you know if you are out of time for a claim?


Ashley Tulley

Chief Commercial Officer

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.

What are limitation periods?

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.

How long do you have in Queensland?

There are a number of different time limitations, these include:

  • For adults – 3 years from date of injury or diagnosis
  • For children – any time before 21 years of age
  • For people with a disability (those whose disability that restricts them from giving legal instructions such as a brain injury) – limitation period does not exist

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

What are these tasks?

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:

  • check
    Lodging your initial notice to the insurer of the hospital or practitioner
  • check
    Receiving a response from the insurer  that confirms they are responsible for the at-fault party
  • check
    Complete investigations that confirm the health practitioners fault and the extent and impact of your injuries
  • check
    Participate in a compulsory conference (a settlement conference between you and the insurer)
  • check
    Exchange mandatory final offers with the insurer)

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.

Understanding when your time limit starts

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.

But in most medical negligence cases that breach isn't discovered straight away.

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

Ashley Tulley

Chief Commerical Officer

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.

Example 1 - Medical Misdiagnosis

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.

Example 2 - Surgical Error

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.  

Are there any circumstances where time limits can be extended?

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:

  • check
    The length of the delay in bringing forth a claim
  • check
    The reasons for the delay in bringing forth a claim
  • check
    The nature and extent of the patient’s injury
  • check
    Whether the medical professional induced the patient to delay bringing forth a claim
  • check
    If the patient obtained or tried to obtain medical, legal or other expert advice

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 a claim doesn't mean you have to finish it. 

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.  

Written by Ashley Tulley | Chief Commercial Officer