If you have suffered harm as a result of medical negligence you should have your potential claim investigated as soon as possible. The reason for this is that the law in NSW does not allow an indefinite period of time to commence legal proceedings.
Limitation period in NSW
The limitation period to commence proceedings is the earlier date of either 3 years from the date of discoverability of a cause of action or 12 years from the date of the negligence. It is whichever date comes first.
Your claim is discoverable when you know (or ought to know) each of the following:
- that you were injured or a death occurred;
- that the injury or death was the fault of the defendant; and
- that the injury was sufficiently serious to justify you bringing a claim.
A case example – Smith v Hunter New England Local Health District
This was a claim bought by a woman in relation to the failure of a hospital to appropriately manage treatment of her husband. The woman’s husband was allegedly discharged on incorrect medication and subsequently committed suicide.
A limitation issue arose as the Statement of Claim was filed nine years and ten months after the date of her husband’s death. In determining whether the claim was brought within three years of the date of discoverability, the following facts were considered:
- The knowledge of court processes that Mrs Smith had gained from employment in a debt collecting company. It was accepted that Mrs Smith did not know that there was a time limit for commencing legal proceedings.
- Mrs Smith had knowledge that hospital staff were of the view that her husband had been discharged too early and was on the wrong medication.
- Mrs Smith consulted with a lawyer at s legal centre in February 2004 in relation to requesting a coronial inquest into her husband’s death. The possibility of a Compensation to Relatives or negligence claim was not discussed. However, the report of an expert doctor (Dr Barclay) was obtained.
- In late 2010, Mrs Smith ran into Mr Baker and he suggested that Ms Smith had seven years to sue if she wanted to make a claim against the hospital. Mr Baker was a nurse who worked at the hospital who was also acquainted with Ms Smith.
- On 17 December 2010, Mrs Smith consulted with another lawyer who told Mrs Smith that she would need to obtain an expert report which she agreed to and on 5 December 2013 a Statement of Claim was filed.
The Judge concluded that Mrs Smith did not know, until she consulted with the lawyer in 2010, that suing the hospital was a possibility. Therefore the Judge asked whether Mrs Smith ought to have known that her claim was discoverable.
It was held that “taking all reasonable steps” could not include consulting with Mr Baker who would have told Mrs Smith about the possibility of a legal claim. It was also noted that Ms Smith could not be criticised for not seeking legal advice earlier as she had consulted with a lawyer and was not advised that she may have a potential claim.Therefore it was held that the proceedings were commenced within the limitation period and Ms Smith’s claim could proceed.
- The limitation period does not necessarily end three years from the date of the negligence, however once you have consulted with lawyers it will be difficult to explain large delays in obtaining legal advice.
- The law also requires that plaintiffs take reasonable steps, such as obtaining legal advice to discover their claim as soon as possible so you should not delay consulting with lawyers.
- The limitation period is applied differently in each case because each individual’s circumstances and knowledge varies. Therefore it is paramount to obtain expert legal advice as soon as possible.
If you do not commence proceedings prior to the end of the limitation period, you may be prevented from bringing a claim.