Almost all legal action relating to medical negligence compensation claims throughout the world is subject to time limits. There are time limits for settling claims (the limitation period often set out in a statute of limitations) and for almost all other court procedures some of which may in certain circumstances be determined by a judge as the claim proceeds whereas others are determined by law set out in the relevant statute of limitations. It is also possible for a medical negligence lawyer to appeal many decisions and judgements made by a court of law hearing a personal injury compensation claim and these appeals are inevitably governed by time limits. The main reason for imposing time limits in medical negligence compensation claims is to bring the potential for legal action to an end within a certain period to allow all parties to get on with their lives thereafter however there are practical considerations which include the fact that over a period of time memories fade, witness become difficult to trace or die or move out of the jurisdiction and supporting documentation is often mislaid or destroyed over the intervening years.
The time limit in Ireland that causes the most concern in medical negligence compensation claims relates to the time in which a claim must be determined. In general terms, a medical negligence compensation claim must either be settled or legal proceedings must have been issued in a court of law within two years of the negligent act which caused the injury however this time limit is the subject of several very important exceptions as follows :-
- There is an exception from the two year rule for minors which means those under the age of 18 years at the time the negligent act which caused the injury took place. The time period of two years does not start running in this case until the minor has attained the age of 18 years and has become an adult in law. The two year period actually starts running at the end of the eve of the potential claimants 18th birthday giving that person until the eve of the 20th birthday to either settle the claim or to issue legal proceedings in a court of law with a view to settlement as the matter proceeds in the court.
- In the case of those who are mentally incapacitated the two year period does not start running until full mental capacity is regained meaning that in many cases time never starts to run and the potential claimant can start legal action many years after the alleged negligent incident. This exception is not always straight forward or simple as some potential claimants may drift in and out of lucidity over periods of time and there is always the question of exactly when mental capacity became impaired particularly in the case of the elderly.
- The actual date of knowledge of an injury is an important consideration because the two year time limit period does not start until the potential claimant, excising reasonable diligence, knew or ought to have known about the injury. This is often interpreted as the day when a diagnosis was confirmed by a specialist healthcare professional. This exception is extremely important as many injuries have a long latency period and do not become obvious until many years later and in the case of medical malpractice, foreign bodies including instruments left behind in the body after surgery often do not show up for decades.
- Judges have a wide discretion in these matters however they rarely exercise this discretion in favour of a claimant and this discretion definitely cannot be relied on the deal with a claim where the limitation period has expired. To gain the benefit of this discretion the circumstances must be exceptional.
Statute of Limitation
Time limits and the statute of limitation are minefields which frequently catch out both claimants and inexperienced or negligent lawyers. Once the time limit has expired the opportunity for a medical negligence lawyer to claim compensation has most often been lost forever. If you have been involved in an incident causing personal injury you should contact a lawyer at the first opportunity. Whilst the period of two years may seem like a long time it leaves little opportunity for a solicitor to fully investigate a compensation claim. Claimants who leave maters to the last minute often find it extremely difficult to find a lawyer who will take the case on. If you would like fee advice without further obligation just contact us. A medical negligence solicitor will speak with you over the telephone and will give you an opinion there and then, on both liability and the anticipated value of the claim.
Free Legal Advice
Our medical negligence lawyers offer free advice on all matters relating to negligent clinical treatment including mis-diagnosis and late diagnosis. In most cases our solicitors are able to deal with all of the legal work at no cost to you. If you would like free advice with no further obligation use the contract form or email our offices and a specialist lawyer will discuss your claim over the telephone and tell you how best to proceed to protect your right to claim compensation for personal injury.