If you believe that you may have a compensation claim regarding medical treatment you have received which is negligent, it is important to obtain legal advice as soon as possible. This is because the Limitation Act 1980 sets out strict time limits for bringing an injury claim.
When should I instruct a solicitor?
We always recommend instructing a solicitor at the earliest possible opportunity and advise against putting it off. Investigating a medical negligence claim can be a long process (three years on average) therefore it is recommended to begin the investigation into the claim as early as possible, to ensure that there is plenty of time to secure the evidence and whilst evidence and witnesses’ memories are fresh. It also ensures that there is time to complete the ‘Pre-Action Protocol for the Resolution of Disputes’ to attempt to resolve the claim without court proceedings.
How long do I have to bring a claim?
The general rule is that Claimants have three years from the date the negligence occurred, causing them an avoidable injury in which to issue court proceedings.
However, Claimants may sometimes be unaware that they have received negligent medical treatment or care until a later date. In this situation, the three-year time limit begins upon the date when they first became aware of an injury caused by negligent medical treatment, ie: delayed diagnosis of cancer. Again, we would always recommend that you contact solicitors at the earliest possible stage and do not assume you can disapply the Limitation Act time limits automatically.
What about claims for children, or adults who lack mental capacity?
If a child is injured as a result of substandard medical treatment, including before or during their birth, they will have until their 21st birthday by which to issue court proceedings (three years from beginning adulthood). However, we always recommend that a child’s parents contact solicitors as soon as possible after they become aware that their child has been the victim of medical negligence.
If the injured person lacks the mental capacity to manage their own legal affairs, then the three-year limitation period will not apply. It is important to be cautious, however, because there is a legal presumption of capacity, and a medical assessment may well need to be obtained to prove that the injured person lacks capacity. If capacity is regained, the three-year time limit will start to run from the time capacity is regained.
What if the victim of the negligence has died?
If a person has died as a result of substandard care and treatment, then it may be possible for a family member to bring a negligence claim as executors or administrators of the Deceased’s Estate. The rule is that court proceedings must be issued within three years of the date of the victim’s death, provided this occurred during the initial three-year limitation period and was not time-barred itself. A ‘Grant of Probate’ or ‘Letters of Administration’ must be obtained before proceedings can be issued at Court and this process alone can take six months.
What if my claim relates to private care?
Whilst the three-year time limit for injury claims will still apply regarding negligent care in the private sector, claims for breach of contract for financial losses only have a six-year time limit.
What if the time limit has already passed?
If the time limit has already passed before you instruct a solicitor, it is likely that your claim will be time-barred or, in other words, it will not be possible to continue with a claim. However, occasionally, in very limited and specific circumstances (set out in section 33 Limitation Act 1980) a claim can proceed.
If you think that the time limit for your claim may have passed, you should still contact a solicitor as it may be possible to find a way to take your claim forward. It can also be challenging to apply the limitation (time limit) rules, particularly if there has been more than one incidence of negligence and so a solicitor will be able to advise you about the time limits in your case.
If you believe that you or your loved one has been the victim of medical negligence, contact our expert team to find out whether you may have a claim. RHL Solicitors’s specialist solicitors act for the victims of medical negligence, conducting thorough and rigorous medical negligence investigations with the intention of establishing liability, and recovering much needed compensation for injured Claimants or the Estates of the deceased on a ‘No Win No Fee’ agreement. The expert reports we disclose to the Defendant during the claim process can also help to make a difference and to improve future care. To find out more, please telephone our expert lawyers on 0344 7768328 free of charge.