*The contents in this blog relates to legislation in New South Wales.
You may have a medical negligence claim if you have been injured following medical management or treatment and you suspect that your injury was caused by negligence.
Although ultimately expert opinion is required in support of the allegations of negligence, there is a timeframe by which Court proceedings must be commenced. This timeframe is referred to as the limitation period. The limitation period that is applicable to one claim might differ to the limitation period applicable to another claim. This depends on the timing at which the alleged negligence that resulted in an injury has occurred.
In New South Wales, if the alleged negligence giving rise to your personal injury occurred on, or after, 6 December 2002, legal proceedings must be commenced within three years from the date at which the cause of action became discoverable. This means that your claim for compensation arising from injuries sustained as a result of alleged medical negligence must be filed in court within three years of the time at which you realised, or ought to have realised, the following matters:
- you have sustained an injury; and
- the injury is the fault of the defendant; and
- the injury is worth suing over.
It is prudent to commence legal proceedings within the limitation period and it is always preferable that a claim is commenced within the earliest three years from the alleged negligence giving rise to the injury. However this is not always possible. For example, if you sustained injury due to a delay in diagnosis and treatment of a condition that began to make you feel unwell in say 2016, and you consulted with several doctors, or presented to your local public hospital over a period of several years. Despite seeking medical advice, your condition was not diagnosed until say 2021 and you became aware of test results that were available in 2016 that detected your condition, then it is arguable that the limitation period is three years from 2021 as that was when you discovered that you were injured, the injury is the fault of the doctors or hospital that failed to diagnose you in 2016 and your injury is worth suing over (i.e. serious enough to bring a case). There is a long-stop bar of 12 years from the time at which the alleged negligence occurred. There are arguments that could be made to extend the limitation period after reaching the long-stop bar, however, those arguments are limited.
If the alleged negligence occurred in New South Wales at some time after 1 September 1990, but prior to 6 December 2002, the limitation period is three years from the date on which the cause of action accrues.
If you sustained a latent injury and did not commence proceedings within three years from the time of the alleged negligence and wish to bring a claim for personal injury compensation, you must make an application to the court to extend the limitation period within three years of becoming aware, or ought to have become aware, of the nature and extent of your injury and that your injury is connected to the alleged negligence. An example of a latent injury would be if you underwent surgery and there was a surgical error during the surgery that caused you injury, but you became aware of the surgical error many years later.
In the event that you were a minor at the time of the alleged negligence that occurred after 1 September 1990, but prior to 6 December 2002, the limitation period is suspended until you turn 18 years of age. This means that the limitation period is three years from your 18th birthday, subject to disability. If you suffer from a disability, the limitation period is suspended for the duration of your disability, up to an ultimate bar of a period of 30 years. The ultimate bar does not apply if you sustained a latent injury.
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The limitation period is a complex area of the law and requires careful consideration of matters that are specific and unique to each claim. If you or a loved one have suffered injury as a result of suspected medical negligence, you may be entitled to compensation. It is important that you get advice as to your legal options.
At Turner Freeman, we have specialist medical negligence lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our medical negligence lawyers are located across NSW including in our offices in Parramatta, Sydney, Wollongong, Newcastle and Toronto