Timeframe To Sue for Medical Negligence

Timeframe To Sue for Medical Negligence

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It can be difficult to know whether your medical negligence claim against a doctor, hospital or allied health provider has merit, let alone whether you are still within the requisite timeframe within which to commence your case in Court.

 

Understanding the limitation period for medical negligence claims

What is the Limitation Period?

The time period during which a case must begin in Court (often called the limitation period), regardless of the strength of a matter, is important, and an issue that all potential litigants must be aware of.  A recent Supreme Court of NSW decision by His Honour Cavanagh J of Vonhoff v Hillier [2024] NSWSC 1285  very helpfully sets out the law and considerations to be taken into account when assessing whether, in medical negligence proceedings, the limitation period has expired and whether an extension of time is warranted in the circumstances of the case.

 

In New South Wales plaintiffs must now commence their case in Court no later than 3 years from and including the date on which they discovered their cause of action.  As an example, if you had negligent surgery on 5 October 2021 and you discovered the cause of action on 2 June 2022, then the last date that you can file your case in Court is 1 June 2025.

 

The Role of Discoverability in Medical Negligence Cases

Of course, the debate is always about when the cause of action was discoverable.

 

Determining when a case of action is discoverable can be complex.  By law, it is the first date that you knew or ought to know of each of the following facts:

 

  1. The fact that the injury or death concerned has occurred,
  2. The fact that the injury or death was caused by the fault of the defendant,
  3. In the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

 

In addition to the 3‑year post discoverability limitation period, there is a 12-year long-stop limitation period which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death.  The 12-year long-stop limitation period can be extended by a Court order.  If the 12-year period applies, a person is considered to be out of time depending on which of these periods expires first.

 

To determine if a person is still within time to sue for medical negligence in Court, a number of factors must be considered and the circumstances of the whole case must be looked at very closely. To assist in the process, a detailed statement must be obtained on the history of the person’s circumstances, including as examples, whether they sought advice from previous lawyers, when they discovered the extent of their injuries and disabilities, when their condition stabilised and when they were told, if at all, that their injury was permanent and unlikely to resolve.  If a person has had a number of medical interventions following the negligent act in the hope of improving, then this also becomes relevant.  As a medical negligence case can fail on this very issue, the assessment of whether a person is still within time to bring a case in Court requires specialised legal advice and early consultation with an expert lawyer.

 

Why Choose Stacks Goudkamp for Medical Negligence Claims?

At Stacks Goudkamp, we understand the complexities and sensitivities involved in medical negligence claims. Our team of expert personal injury lawyers has extensive experience navigating the legal system to ensure you receive the compensation and justice you deserve. Our lawyer will adivise you on the timeframe to sue for medical negligence.  With a proven track record of success, Stacks Goudkamp provides compassionate, client-focused legal support tailored to your unique situation. Don’t leave your medical negligence claim to chance—contact us today for a consultation and let us guide you every step of the way.

 

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