Claims for clinical negligence, like other cause of actions, are subject to prescriptive periods. If the victim or his/her representative fails to file a claim in time, the court may not entertain the claim for hospital compensation.
Clinical Negligence Limitations
Under the Limitation Act of 1980, claimants for clinical negligence compensation are required to file their claims within 3 years of upon acquiring knowledge of the negligence of the healthcare professional. Thus the limitation period of 3 years should be counted from the time when the victim or a representative has acquired reasonable knowledge of the existence of negligence.
The following are taken into account to the determine whether the 3-year period has started:
- Substantial knowledge of the facts–It is required that the claimant must know substantially the facts surrounding the negligent act or omission.
- Knowledge of the severity of injury–The claimant must know that the injury caused by the negligence of the healthcare professional is severe enough to be taken to court.
- Identity of the negligent party–It is necessary that the claimant must know the identity of the party who caused the injury.
Exceptions to the 3-year Rule
But what if you have a claim and three years have already passed upon your knowledge of the negligent act? Will the court dismiss your claim? The 3-year rule is not absolute and is subject to the following exceptions:
- Minority–In case the victim was a minor, the court will still entertain a claim even if several years has passed by since the incident. The law states that the 3-year period will not run until the 18th birthday of the victim. That means that a claim must be filed before the victim reaches 21 years old.
- Incapacity–If the victim was mentally incapacitated when the incident took place, the law allows suspension of the 3-year period until the incapacity disappears.
- Exceptional cases–The court has the discretion to disregard the 3-year rule and hear the case. The court, however, will only grant this exception only to exceptional cases.
To determine whether you are still qualified to file a claim, you should contact a clinical negligence solicitor the soonest possible time. Upon submission of documentation and other evidence that you can provide, the solicitor will timely inform you if you have a claim. Solicitors specialising in clinical negligence have a wealth of knowledge when it comes to disputing cases involving negligence of healthcare professionals. If provided with sufficient details, they will be able to determine with accuracy the existence of clinical negligence and if it can still be filed.