A medical negligence claim is an option for people who have suffered negatively from an incident (or set of incidents) that have occurred due to the negligence of a healthcare professional. It is important to note, however, that medical negligence claims can only be made when there has been negligent behaviour, and NOT when someone’s health has been negatively affected by medical treatment (or lack of).
When it comes to making a medical negligence claim, the key is to be able to prove that the medical professional acted in a negligent manner. And that this negligence resulted in you suffering more than you needed to have suffered should the event not have happened.
Medical negligence claim time limited
If you are considering making a medical negligence claim, it is important that you are aware that in most cases, the claims are bound by time limits. In the Limitation Act 1980, it is stated that you will generally have to start to make the claim within three years of the incident occurring – (in a similar way to a standard personal injury claim) or from the date you knew or ought to have known that you suffered an injury as a result of the incident.
If you attempt to make a medical negligence claim after the three-year time limit, there is a chance that your claim will not be valid – except under a few circumstances. If you are out of time it is likely that you will be unable to get compensation through the courts for the harm that you have suffered.
Medical negligence awareness
The law relating to the time limit for medical negligence claims in the Limitation Act 1980 states that the claim must be made within three years of the incident occurring. However, this is not always possible. For example, on some occasions, a person might not notice the impact of the negligence until a degree of time afterwards – this could be days, weeks, months, or even years.
In this instance, the time limit will start three years from this date. If this applies to you, you may be required to prove that this was the case – through medical records or likewise.
The date when an injury has been diagnosed or noticed is known as the ‘date of knowledge’.
Delayed perception of medical negligence
It is also possible that an incident has occurred, of which you are aware of, resulting in your suffering, but the date of your awareness that it was a case of medical negligence was delayed. If this is the case, you might also be able to start the three-year time limit from the ‘date of knowledge’ concept.
Medical negligence claims for children
When it comes to claiming medical negligence for children, the rules are slightly different.
For children under 18 years old, the three-year time limit does not apply until their 18th birthday. Prior to their 18th birthday they are unable to legally make a medical negligence claim unless they are helped by an adult in bringing the claim
If an incident occurs to a child, a claim can be made but it must be done by an adult representative for them. This person can include a parent or legal guardian, another member of the family, and family friend, or a legal representative such as a personal injury lawyer, but the person must act in the best interests of the child.
If the medical negligence claim is successful and the claimant is paid compensation. The money will be placed into a secured bank which can be only accessed by the child when they reach 18 years old. in some cases, the money can be accessed by the child’s parents having gained permission from the court. It is stipulated that this money can only be used to benefit the child directly, however.
Medical negligence claims for people with diminished mental capacity
If someone has been a victim of medical negligence and has diminished mental capacity, the three-year rule can also be indefinitely suspended. This means that a claim can be made at any time after the incident – and made by a third-party representative if necessary.
If someone has been temporarily affected with diminished mental capacity and subsequently regains it, the three-year time limit will begin again when they are fully recovered if the claim has not already been started.
The Bolam Test
In both public and private healthcare, medical negligence is measured using a test known as the ‘Bolam Test’. The Bolam Test measures the concept of when an action changes from something that COULD be done, to when it SHOULD be done. The Bolam Test looks at what other medical professionals would have done under the same circumstances and whether they believe that the actions of the medical professional(s) were a valid way of dealing with the situation.
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Last reviewed on 11/07/23 by Joseph Norton who is an Associate Director and Head of Compensation