Medical negligence resulting in death
Discussion
The limitation period for a claim for personal injury or death caused by negligence (medical or otherwise) is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(Section 11(4) Limitation Act 1980).
The relevant knowledge is knowledge that the act complained of has caused injury. Thus if a person has a medical procedure and only finds out five years later that the procedure was performed negligently, the limitation period would run from that time. As an example, a hip replacement operation is done in 2010. In 2015 the replacement hip fails and it is discovered that the hip was installed incorrectly. By contrast, where someone has an operation in 2010 in which the healthy left kidney is removed instead of the unhealthy right one, then the limitation period starts from the operation.
The Court has discretion under section 33 of the 1980 Act to extend the limitation period where it would be just to do so.
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(Section 11(4) Limitation Act 1980).
The relevant knowledge is knowledge that the act complained of has caused injury. Thus if a person has a medical procedure and only finds out five years later that the procedure was performed negligently, the limitation period would run from that time. As an example, a hip replacement operation is done in 2010. In 2015 the replacement hip fails and it is discovered that the hip was installed incorrectly. By contrast, where someone has an operation in 2010 in which the healthy left kidney is removed instead of the unhealthy right one, then the limitation period starts from the operation.
The Court has discretion under section 33 of the 1980 Act to extend the limitation period where it would be just to do so.
Edited by anonymous-user on Friday 10th November 05:52
I wouldn't put it quite in that way. You first ascertain when the alleged injury occurred. If that was more than three years ago, check when the injured person first knew of the injury. If that was more than three years ago, consider if there are grounds for discretionary extension of time.
I've had a medical negligence claim running for nearly six years. As long as you've put in any form of complaint previously even verbal it seems to carry the day.
Medical defence societies tend to agree extensions willy nilly anyway. This was explained to me as judges don't take kindly to you trying to stop an action with a time limit.
Care to tell us more about what and why?
Medical defence societies tend to agree extensions willy nilly anyway. This was explained to me as judges don't take kindly to you trying to stop an action with a time limit.
Care to tell us more about what and why?
Section 14 of the 1980 Act deals with knowledge -
14 Definition of date of knowledge for purposes of sections 11 and 12.
(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(1A) [omitted because not presently relevant]
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
Judicial explanation from a case in 2015:-
"The effect of section 11(4)(a) and (b) is that, where proceedings are not commenced within three years of the cause of action arising, generally the claimant has the burden of proving that he did not have the requisite knowledge until a date within the three years preceding the date of issue of proceedings (Nash v Eli Lilly & Co [1993] 1 WLR 782 at page 793H, paragraph 6).
“Knowledge” in the context of section 14 does not mean know for certain: it means know with sufficient confidence reasonably to justify embarking upon steps preliminary to the institution of proceedings "
(Summers v City and County of Cardiff)
14 Definition of date of knowledge for purposes of sections 11 and 12.
(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(1A) [omitted because not presently relevant]
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
Judicial explanation from a case in 2015:-
"The effect of section 11(4)(a) and (b) is that, where proceedings are not commenced within three years of the cause of action arising, generally the claimant has the burden of proving that he did not have the requisite knowledge until a date within the three years preceding the date of issue of proceedings (Nash v Eli Lilly & Co [1993] 1 WLR 782 at page 793H, paragraph 6).
“Knowledge” in the context of section 14 does not mean know for certain: it means know with sufficient confidence reasonably to justify embarking upon steps preliminary to the institution of proceedings "
(Summers v City and County of Cardiff)
220s plenty said:
Second paragraph is what I thought - thanks for that. It's regarding the death of relative following a surgical procedure.
Well, as sad as that sounds you need to focus on what you are trying to get from the situation. In my experience heading toward the legal profession with a point of principal is expensive and very unlikely to make you walk away feeling satisfied.Have you got a health professional you know that you trust to go and discuss the case with. Ideally maybe discuss with the patients own GP. I get quite a lot of relatives come to talk after a bereavement, mainly to ensure everything was done that could have been done.
Despite what you make see in newspapers medicine is quite a transparent field. If something shouldn't have happened I usually tell people that. You certainly get an idea of the pros and cons of the situation.
Informal chats like that with the medical people involved will all stop if they get a solicitors letter. Medical professional are told not to have any further correspondence with the parties once that happens. It often means that when a legal complaint comes through you then have little chance of any real explanations. I tend to hate that about the legal profession.
Probably not relevant here but iirc the 3 year clock doesn't start until 18 years of age for minors, so that they may take action in their own name for any negligence from birth onwards.
I always caution people to remember wrt medical negligence that doctors and staff are allowed to make mistakes. Everybody makes mistakes. To succeed you need to prove the negligence bit, not the mistake bit. Coupled with the almost total failure of the medical system to ever seem apologetic for non-negligent mistakes it leads to a lot of claims being made. Most of which only make money for the lawyers before being dropped.
Anyway, good luck with your claim: make sure you find a firm of sharks that specialises in medneg
[It used to be that around 1 in 10 of all med neg claims brought were to do with left/right errors: and if I was having a leg/arm off I would take my own sharpie in with me and write 'not this leg' on the appropriate limb.]
I always caution people to remember wrt medical negligence that doctors and staff are allowed to make mistakes. Everybody makes mistakes. To succeed you need to prove the negligence bit, not the mistake bit. Coupled with the almost total failure of the medical system to ever seem apologetic for non-negligent mistakes it leads to a lot of claims being made. Most of which only make money for the lawyers before being dropped.
Anyway, good luck with your claim: make sure you find a firm of sharks that specialises in medneg
[It used to be that around 1 in 10 of all med neg claims brought were to do with left/right errors: and if I was having a leg/arm off I would take my own sharpie in with me and write 'not this leg' on the appropriate limb.]
220s plenty said:
Not trying to do as such - a claim wasn't appropriate to consider in previous years. I will explore the claim further as I believe there's a strong case; the clause isn't black and white.
220s plenty said:
Not trying to do as such - a claim wasn't appropriate to consider in previous years. I will explore the claim further as I believe there's a strong case; the clause isn't black and white.
What do you mean a claim wasn't appropriate to consider in previous years? That sounds like you knew something was wrong for a significant length of time. Also, how are you related to the deceased, are you the next of kin or are you just trying to convince the next of kin to agree with your belief?All surgical procedures have a risk or mortality by the way, even minor ones, and this is something which is usually mentioned during the consenting process. If the procedure was a major one, then the risk of death would've been even higher. Further, different patients have different risks of death or other complications following the same procedure. Just because someone dies following a surgical procedure doesn't mean that there was an error or negligence either. If you give brief details, even if only the name of the procedure, I may be able to comment on this aspect.
220s plenty said:
Claim wasn't appropriate previously - one example would be difficult relations with family members. There's a lot of water under the bridge at this point. As you say I suspected the surgery was erroneous to some extent off the proverbial bat, as do others. Unfortunately there were little efforts in terms of medical interventions to address obvious worrying symptoms as far as I'm concerned - medical records may disprove this.
The surgery was rather invasive (don't wish to divulge) and frankly I don't believe the deceased (my parent) should have been considered a feasible candidate for the type of surgery given previous surgical damage. It's appreciated that invasive surgery carries high risk, however there are reports of extremely good prognosis (<3% death instances over nearly 20,000 surgeries in one particular ten year study) following this surgical procedure in a very high percentage of cases. Furthermore there's only a handful of cases evident in the press that co-inside with my parents symptoms leading to death.
In any case I've composed a letter to request medical records - I will study them and decide the next course of action (if any).
How could 'difficult family relations' make a claim inappropriate, or justify a time extension?The surgery was rather invasive (don't wish to divulge) and frankly I don't believe the deceased (my parent) should have been considered a feasible candidate for the type of surgery given previous surgical damage. It's appreciated that invasive surgery carries high risk, however there are reports of extremely good prognosis (<3% death instances over nearly 20,000 surgeries in one particular ten year study) following this surgical procedure in a very high percentage of cases. Furthermore there's only a handful of cases evident in the press that co-inside with my parents symptoms leading to death.
In any case I've composed a letter to request medical records - I will study them and decide the next course of action (if any).
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