If you think medical negligence occurred while undergoing surgery, or during the care and treatment received after surgery, you may want to make a claim for compensation. However, the time at which you decide to claim can be important to proceedings.
Why would you make a claim after surgery?
If you think an aspect of your care or treatment (including any surgery) was below a reasonable standard, you may be able to make a claim for medical negligence.
Proving medical negligence is complex. Therefore, it will be important to get advice from an experienced professional.
A reputable clinical negligence solicitor can guide you through the process. They will put together a case, based on:
- your account of what happened
- what is physically wrong now
- your medical notes
- anything friends or family may know or have witnessed.
When should you claim after surgery?
There are strict rules on when you may make a claim. These are set out in the Limitation Act 1980 and are often referred to as limitation periods. These are fixed periods of time within which civil proceedings must be started.
If you are going to make a claim for medical negligence, you must do so within these time periods, although there are some limited exceptions.
For most adults, a medical negligence claim must be brought (started) within three years of the date the negligence occurred, or the date you became aware of it.
‘Awareness’ of negligence
It is not always easy to know that medical negligence has occurred. This can make it difficult to know when the limitation period runs from.
As a rule of thumb, you will be deemed to be ‘aware’ of the negligence if:
- The injury or harm you suffered is significant
- You are aware of the injury or harm
- You are also aware of the defendant, i.e. the place or person who caused the injury. (This does not necessarily have to be the actual name of the surgeon.)
Applying a timeline to awareness of medical negligence
The following is an exemplar scenario:
Ms X has an operation. She appears to recover, but subsequently becomes ill.
Sometime later, a doctor identifies that Ms X is ill because of something that happened during her surgery.
Ms X would be deemed to be ‘aware’ of the negligence from the date of this doctor’s later diagnosis, not the date of the surgery nor the date when she became ill.
Exceptions to the limitation period
There are a few exceptions to the three-year rule:
Diminished mental capacity
If someone is deemed to have diminished mental capacity, there is no time limit for them to claim. However, if they ‘recover’ their mental capacity, the limitation countdown commences.
‘Diminished mental capacity’ may apply if someone:
- has suffered brain damage
- has a mental impairment or disease
- is ‘incapable’ of understanding the situation and cannot make appropriate decisions.
Determining whether someone has ‘diminished mental capacity’ is a complex issue. It needs to be decided by medical evidence and the courts.
Children that suffer from an act of medical negligence under the age of 18 have three years from the date of their 18th birthday to bring a claim, unless their parent has already made a claim in relation to the same case.
If someone dies as a result of medical negligence, the family of the deceased have three years from the date of death to bring a claim, provided the limitation period had not expired prior to the date of death.
If someone dies having already made a claim (which has yet to be concluded) their personal representative will have three years from the date of death to continue with their claim.
What happens if the limitation period runs out?
If you do not bring a claim within the limitation period, and if no exceptions apply, the defendant to your claim will usually apply to have your claim dismissed.
However, the court can still allow your claim to proceed if it feels you had compelling reasons for not bringing the claim sooner.
This can also be a complex and contentious decision. You should never rely on the fact that a court may extend the limitation period.
Deciding to make a claim after surgery
If you think you may have been the victim of medical negligence, it is important to get professional advice from a clinical negligence solicitor as early as possible.
A clinical negligence solicitor will be able to advise you about the strength of your case and, if appropriate, start the process to ensure that a valid claim is filed with the courts in time and protected from being dismissed.
At Devonshires Claims, our experienced and medically knowledgeable legal team is ready to assist you. They will evaluate your case for evidence of surgical error, and then proceed with a ‘no-win, no-fee’ negligence claim on your behalf.
For more information and a free case evaluation, get in touch with the team at Devonshires Claims by calling 0333 900 8787, sending an email to firstname.lastname@example.org or completing our online form.