New legislation, which is yet to be enacted, will give injured parties up to three years to make a medical negligence claim.
The date from which this period will run is not always clear and may ultimately have to be adjudicated upon by the courts.
A new provision in the Legal Services Regulation Act 2015, once it is commenced, will extend the time period within which to issue proceedings claiming medical negligence from two years to three years. The three year period will run from the date on which the cause of action accrues or from the date of knowledge (if later) of the injured person. This is a very significant change as it will give injured parties considerably more time to decide whether they wish to pursue a medical negligence claim.
The change is needed due to the particular circumstances of medical negligence and the special susceptibilities of the injured parties.
Medical negligence cases are usually far more complicated than the majority of personal injury cases and are more suited to a longer limitation period than the two years afforded to personal injury cases. Also, they do not benefit from the six-month stay afforded to personal injury claims which are processed by the Injuries Board.
The medical injury and the fact that it is attributable to negligence may not be immediately obvious. A person may not initially realise that the injury was not simply a natural result of the underlying condition they were seeking medical attention for in the first place or that it was a known risk of the condition. There may have been a misdiagnosis of a disease or a failure to diagnose a medical condition at all.
Most people who are seriously injured do not make an appointment to see a solicitor immediately after it has happened and it can take several months to recover emotionally and physically to the point where legal advice is sought.
Being "put on inquiry"
Sometimes it may not even be clear that there was negligence until an expert report is received outlining the negligence. However, a claimant cannot necessarily rely on the fact that they are waiting for an expert report. A person may be put on inquiry that there is an injury, which invariably means that they should have had enough knowledge to realise that there was an injury even in the absence of an expert report.
Medical records are not essential for requisite knowledge
In a recent case, the plaintiff became aware through the media of controversy regarding the performance of symphysiotomies and requested copies of her medical records in February 2010. She claimed that she did not have knowledge of her potential claim until she received her medical records in August 2011.
The Court of Appeal held that the date of knowledge was 2010 when, on her own evidence, she believed that her symphysiotomy had not been necessary and was aware that her injuries were ‘reasonably attributable’ to the medical care that she received rather than being a natural consequence of the illness or pathology itself.
Arguably, if a claimant could wait until they have received their medical records before time starts to run against them under statute they would have control over when time starts to run and over how long to choose to wait before seeking the medical records. In a more recent case, however, it has been held that there will be some instances where the medical records will be essential for the claimant to have the requisite knowledge to be able to attribute the injury to the medical care. This judgment is currently being appealed.
The date of knowledge will undoubtedly remain a contentious issue. Even though the Statute of Limitations for medical negligence claims is to increase to three years, which is welcome, there will always be cases where the date of knowledge will have to be determined and the individual facts examined to identify the correct date.
However, it would be unwise to assume that time does not begin to run until the date medical records are received and/or a supportive expert report is available.