The limitation period is the period of time in which a claimant can start proceedings for their injury. If a claimant misses the limitation date, the claimant may miss their chance to make their claim.
The Limitation Act 1980 tells us that the date of limitation can be worked out in 2 ways. The first is by using the date that the injury occurred. The date of limitation is 3 years from the date of injury. If the injury occurred on the 15th February 2016 the limitation date would be 15th February 2019.
Working out the limitation date using only this method would make claiming for clinical negligence cases difficult because the claimant may not know that the care they had was negligent until well after the injury was sustained or client had only just been given the bad news. We recently settled a case where the diagnosis of cancer was missed in 1994.
The Limitation Act 1980 recognises this and gives us a 2nd way to work out the limitation date known as the date of knowledge.
The date of knowledge is when a claimant first realises that an injury is significant and has been caused by the actions of the medical professional. The time limit to begin the action against the defendant is 3 years from the date of knowledge. It can be difficult to know when an injury is due to the actions of a medical professional because most of us do not have access to our records and may not have the experience to interpret what those records say about our treatment, the risks and benefits associated with it and whether that treatment was carried out to a reasonable standard.
There is a third way of bringing a late claim. Sometimes a court will allow a claim to go forward because it would be unfair to say no. This can be when the delay is short, or when the claim has been covered up by the defendant. Each case turns on the specific details and it is a risky business to delay asking for advice.
Limitation is an important consideration for a claimant when looking to bring a claim for a clinical negligence injury. If a claimant has facts which lead them to think that they may have a clinical negligence claim it is useful to discuss those with an experienced clinical negligence solicitors sooner rather than later.