A lot of people are aware, mainly from television and radio advertisements, that you have 3 years to bring a personal injury/clinical negligence claim. This is what is known as the limitation period. If you do not start court proceedings within 3 years of the allegedly negligent treatment, or within 3 years of when you suspected or ought to have suspected you may have received negligent treatment if that is later, you may be barred from bringing a claim.
What these adverts often do not make clear is what needs to be done before you will be in a position to issue court proceedings. These adverts often relate to simple personal injury or road traffic claims. Clinical negligence claims are by their very nature much more complex and the following steps need to be taken before we can issue court proceedings:
- We need to obtain all of the relevant medical records. Under the Data Protection Act 2018 (for living patients) and the Access to Health Records Act 1990 (for deceased patients), the holder of these records, such as the hospital or GP, has one month to disclose them to us. Frequently the records are not disclosed to us within this time and we have to threaten or, in some cases issue, proceedings purely for a court order for disclosure. If we need a court order, this can take several months to obtain.
- We then need to obtain expert evidence on breach of duty (what if anything was done wrongly) and causation (whether this caused any injury). The experts we use are at the very top of their field and so are usually very busy with NHS work, their private practice and other medico-legal work. It is therefore not unusual to have to wait several months for a report but as cases stand or fall on the expert evidence, it is important we go to the right expert even if this results in some delay. In a lot of cases, we need more than one expert to assist us in proving the claim.
- Once we know what our allegations are, we need to put these to the Defendant under the pre-action protocol. The Defendant then has 4 months to investigate and respond.
- During this time, we need to investigate the long term effect the injury has caused and the value of the case. This is frequently far from straight forward, particularly when someone’s prognosis is not yet known, often because they are still receiving treatment for their injury.
- Should the Defendant make a reasonable offer of settlement once they have investigated the claim, court proceedings will not be necessary. However, if they deny they did anything wrong or even if they admit it but make too low an offer, we will then need to issue proceedings.
People frequently contact us regarding a potential medical negligence claim only a few weeks or months before the limitation period expires. This is completely understandable; they have often had a life changing injury which has monopolised their time and attention, lost a loved one which has taken some time to come to terms with, or sometimes they simply hope they will make a full recovery and so will not take matters any further. Whatever the reason, these people have been through an awful time and 3 years can pass by very quickly.
Whilst these people have our utmost sympathy, we are unable to take on a clinical negligence claim if we do not have enough time to investigate. Whilst there is the possibility of the Defendant agreeing to give us extra time to investigate or a Judge allowing the claim to be brought out of time, there is no guarantee we would be able to secure either option and ultimately the claim may fail, not because of the merits of the claim, but simply because it has been brought too late.
If you think you or a family member has been injured as a result of medical treatment, please seek advice as soon as possible. Whilst the limitation period may not start as soon as the negligence occurred if you were unaware of it and had no reason to suspect otherwise, the 3 year period will start to run as soon as you suspected, or ought to have suspected, you may have received negligent treatment. This is known as your “date of knowledge”. You have 3 years from your date of knowledge to bring a claim, and this can range from the time the negligence occurred, if you were aware of it straight away, to several years later.
We appreciate that should you have been injured as a result of medical treatment, you and your family will have a lot to deal with without the added stress of a legal claim. However, by the time you feel able to investigate the claim, it may be too late and you may be unable to secure compensation for your injuries.
Our solicitors try to make bringing a claim as easy and stress-free as possible as we understand that you will no doubt be going through a very difficult time. If you would like advice about treatment you or a family member has received, please telephone us on 01642 231110 for some free, no obligation advice from one of our solicitors.
Kathryn Watson – April 2019