In NSW, time limits apply to bringing medical negligence matters. A person has three years from the date that they know or ought to have known that negligence occurred. The person must “discover” the following three things:
- that the injury concerned occurred;
- that the injury or death was caused by the fault of the defendant; and
- in the case of injury, that the injury was sufficiently serious to justify the commencing of a legal action.
Once a person knows of the above three facts, they are said to have “discovered” negligence. They have three years from the date of discovery to commence court proceedings. In medical negligence claims, the date of discovery is not necessarily the date of injury. This is because in order to discover negligence, a person usually needs to have the benefit of legal and medical evidence.
The NSW Supreme Court had to consider limitation period issues, among other things, in a recent decision of Thompson v Rosen.
Ms Thompson brought proceedings against Dr David Rosen and Associate Professor Alan Lam, both gynaecologists, in respect of operations performed in August 2007 and February 2008 respectively. Ms Thompson filed her statement of claim in the Supreme Court on 1 November 2018.
The defendants argued that because her injuries were suffered more than three years before she filed her statement of claim, that she had commenced her proceedings outside the limitation period. They argued that her injuries were sufficiently serious such that she ought to have contemplated commencing proceedings before she did. For this reason, she should not be permitted to continue her claim.
Ms Thompson contended that she did not “discover” negligence until 6 September 2018, when she obtained a supportive expert report. She argued that she did not know that her injuries had been caused by the fault of the defendants until she read the expert’s evidence.
She relied on previous cases heard in the Supreme Court which looked at the concept of “fault.” In considering her case, the Court decided that “fault” in the sense of a medical negligence matter referred to fault in respect of the particular cause of action. Establishing “fault” in a medical negligence matter requires professional advice and opinion from an appropriately qualified medical expert followed by legal advice on the elements of negligence. The Court also decided that alleging a party is at “fault” is different to complaining about the outcome. A person might be unhappy about the outcome of a medical procedure, but they will not know that negligence has occurred until they obtain expert medical evidence as to the elements of negligence.
The defendants argued that Ms Thompson had a “reasonably held belief” that there was a “connection between her injury and the defendants’ conduct in question”. However, Ms Thompson submitted that she had received legal advice that she would not have a claim against the medical practitioners until she obtained supportive expert medical evidence.
Ms Thompson was successful in defending the application to have her proceedings dismissed.
The Supreme Court’s decision is a reminder that medical negligence matters are complex and require medical evidence and legal advice before commencing any court proceedings.
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If you are considering bringing a medical negligence claim, it is important to obtain legal advice from solicitors who specialise in medical negligence. At Turner Freeman we have a team of lawyers who specialise in medical law claims.
If you or someone you know has suffered as a result of medical negligence we encourage you to call us on 13 43 63 to speak with one of our medical law experts. We will treat your enquiry and all information you provide confidentially.