Limitation in clinical negligence cases

The complaint was about treatment the patient had received when she was referred to hospital with suspected appendicitis. She was treated conservatively for eight days and was then operated upon. Her postoperative course was stormy, severe complications ensued and after further operations she underwent treatment for a number of years.

Ten and a half years after her original treatment she started court proceedings alleging that the delay in operating was negligent and the cause of all the ensuing problems.

Lawyers acting for the doctors involved required her to explain the delay in making the complaint and maintained that she had left matters too long to be allowed to proceed. The patient maintained in turn that because she had lacked certain necessary knowledge until a short time before she started proceedings, and had started proceedings within three years of obtaining that knowledge, she was entitled to continue with her claim.

The case went to a hearing to decide the point and the patient explained in evidence that the crucial 'knowledge' that made her consult her solicitor was the news that she had not been operated upon until eight days after admission. She said that until told this she had always believed that she had been operated upon immediately because she had never had any memory at all of the first week or so in hospital due to the severity of her illness.

On further questioning it became clear that the patient had originally not wanted to sue the consultant who had continued to treat her over a long period and for whom she had a high regard. She had also worked at the hospital as a pupil nurse. It was not until after these connections were severed that she sought advice.

In giving their evidence, the nursing and medical staff found it of considerable help to be able to refer to meticulous clinical notes made at the time to reinforce their universal opinion that the patient's clinical condition could not account for the claimed loss of memory.

The judge was impressed by the weight of this evidence. He found that the patient must have known her position and had chosen not to take steps to sue until she did for reasons of her own which did not provide a valid excuse for the delay. He therefore accepted the defendant's argument and stopped the claim from proceeding any further.

Most practitioners are aware that they are more at risk than ever before of being sued by a patient. Many will perhaps know that the law generally requires a patient to bring court proceedings for medical negligence within three years of the treatment which is the subject of the complaint but how many know, save by experience, that the rule is flexible?

For example, a patient may sue many years after the event if he satisfies the court that he was not aware of his entitlement to do so until shortly before he issued proceedings. However, those affected by the rule can take comfort: the law will look very carefully at such a stale claim before deciding whether to let it continue.

This page was correct at publication on 01/01/2002. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.