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Clinical Negligence Cases - Time Limitations

Most clients and potential clients are well aware that you need to bring a claim (that is, issue it in Court) within three years of the date of the negligence or date of knowledge of the negligence.

Many people may think that they are outside this time limit and not consult a solicitor when this is not necessarily the case.  This is particularly so when a patient has relied, on the advice of treating clinicians, that their symptoms will improve, only to suspect months or years later, when their symptoms remain, that perhaps their medical treatment was negligent.

The position has been further helped by recent case law with regard to when a victim of a medical accident is fixed with the requisite knowledge that starts the time running. In Harrison v Isle of Wight NHS Primary Care Trust (2013) the Court decided the issue of limitation on the basis of the facts and what actual knowledge the claimant possessed.  This was a case involving a shoulder injury that did not resolve following surgery.  It was held that the claimant was entitled to rely on the advice of her treating clinicians and could not be considered to have had knowledge of her injury for the clock to start until the actual specific injury complained of was subsequently confirmed, not the injury that she thought had occurred.  Even though in this case a solicitor had been instructed, reports obtained and the case discontinued over three years before.  The court felt that the previous solicitors had been “barking up the wrong tree” with regard to what had caused the shoulder problems.  That did not mean the claim was out of time.

These cases are very fact sensitive and it is clear that the Court appreciates that limitation and date of knowledge arguments in clinical negligence cases must be considered in the context of treatment and advice provided to the patient by the clinicians.

If in doubt always seek the advice of a specialist clinical negligence solicitor.