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How long after the fact can I make a medical negligence claim?

Written by:

Ray Abbas

November 14, 2024

If you or a loved one has suffered due to medical negligence, you’re likely experiencing a whirlwind of emotions – confusion, anger, and perhaps even betrayal. It’s a challenging time, and amidst the pain and uncertainty, you may be wondering about your legal options. One of the most pressing questions is often, “How long do you have to claim for medical negligence?”

We understand that thinking about legal action might feel overwhelming, but knowing your rights and the time limits involved is important. This guide aims to provide you with clear, compassionate information about medical negligence claims in Australia, focusing on the critical timeframes you need to be aware of.

Quick Links

Time limits for medical negligence claims
How to apply for a long-stop time limit
Steps to take if you suspect medical negligence
The importance of timely action

Real-life case studies
How GMP Law can assist you
Frequently asked questions about medical negligence time limits

Understanding medical negligence

We all place our trust in healthcare professionals, expecting them to provide competent and careful treatment. Most of the time, they do. However, sometimes things go wrong.

Medical negligence occurs when a doctor or other medical professional fails to provide the standard of care expected in their field, resulting in harm or injury to the patient. This can be devastating, not just physically, but also emotionally and financially.

Doctors have a duty of care to their patients, which includes:

Deciding whether to take on a case
Determining the appropriate treatment
Properly administering that treatment.

Any failure in these responsibilities can lead to legal action for negligence.

Examples of medical negligence

Common types of medical negligence include:

Misdiagnosis or delayed diagnosis
Surgical errors
Medication mistakes
Birth injuries
Anaesthesia errors
Failure to obtain informed consent.

Additional types of medical negligence encompass:

Active negligence
Collateral negligence
Comparative negligence
Concurrent negligence
Continued negligence
Criminal negligence
Gross negligence
Hazardous negligence
Active and passive negligence
Willful or reckless negligence
Negligence per se.

If you’ve experienced any of these, know that you’re not alone, and there are pathways to seek justice and compensation. Your medical negligence lawyer will help determine which type of negligence has occurred.

Time limits for medical negligence claims

Now, let’s address the important question: how long do you have to make a claim? In legal terms, this is known as the statute of limitations.

While it might seem unfair to put a time limit on such claims, especially when you’re dealing with the aftermath of medical negligence, these limits exist to ensure claims are made while evidence is still fresh and available.

Standard limitation period

In most Australian states and territories, the standard limitation period for medical negligence claims is:

Three years from the date of discoverability (when you become aware or should have become aware of the negligence), or
Twelve years from the date of the negligent act or omission, whichever comes first.

The twelve-year limitation period is known as the ‘long-stop’ time limit.

It’s important to note that specific laws governing these time limits vary from state to state. For example:

In New South Wales, the Limitation Act 1969 sets out the time limits.
In Victoria, the Limitation of Actions Act 1958 governs the limitations periods.

Exceptions to the standard time limit

The law recognises that there are circumstances where strict adherence to these time limits may result in injustice. As such, there are several exceptions:

1. Minors

If the negligence occurred when the person was a minor, the limitation period typically doesn’t start until they turn 18.

2. Persons with a disability

For individuals with a mental disability or intellectual impairment, the limitation period may be suspended until they regain capacity or have a litigation guardian appointed.

3. Latent injuries

In cases where the injury or its cause is not immediately apparent, the time limit may start from when the injury becomes apparent or is diagnosed.

4. Fraud or deceit

If the healthcare provider fraudulently concealed their negligence, the time limit may be extended.

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How to apply for a long-stop time limit

In exceptional circumstances, it may be possible to seek an extension of the three-year limitation period. This is possible under the ‘long stop’ limitation period, allowing up to 12 years from the date of injury, regardless of when you learned about the fault.

This is at the court’s discretion and is not granted lightly.

To be successful, one typically needs needs to demonstrate that:

There is a reasonable explanation for the delay
The case has merit
The defendant would not suffer undue prejudice if the extension were granted.

To qualify for the long stop time limit, you must provide:

The length of time since you discovered the negligence and the reasons for not filing within three years
The extent and duration of your injuries or loss
Any actions by the medical professional or hospital that may have delayed your response
Your steps taken to seek legal advice and gather evidence
When you discovered the injury and its cause.

Quinn v State of Queensland

The case of Quinn v State of Queensland demonstrates how courts may approach applications for extensions.

In this case:

The applicant, Ms Quinn, underwent several surgical procedures between November 2011 and March 2012 to resection her colon due to bowel cancer
She suffered severe post-surgical complications including significant blood loss, lower back pain, and probable infertility
After discussing her medical situation with a new doctor and the Health Quality and Complaint Commission (now disbanded and replaced by the Health Ombudsman), she sought legal advice in July 2013
Due to an unexplained delay by the applicant’s solicitors in forwarding her medical records, expert reports confirming medical negligence weren’t obtained until after the expiration of the limitation period.

The key issue for the Court was whether Ms Quinn was aware of significant facts affecting her ability to file a lawsuit before receiving the expert report. The state argued that Ms Quinn had all the necessary information to initiate proceedings prior to the report and claimed that her failure to act was due to the negligence of her former solicitors. Despite these arguments, the District Court of Queensland allowed the application for an extension of the statutory limitation period.

This case demonstrates that courts may consider various factors when deciding whether to grant an extension, including the complexity of the medical issues involved and the steps taken by the applicant to investigate their claim.

It’s important to note, however, that relying on an extension is risky. If possible, it’s always preferable to commence proceedings within the standard limitation period.

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Steps to take if you suspect medical negligence

If you believe you’ve been a victim of medical negligence, it’s crucial to take care of yourself while also protecting your legal rights.

1. Prioritise your health

First and foremost, seek appropriate medical care to address any ongoing issues. Your well-being is the most important thing.

2. Document your experience

Start keeping detailed records of your medical treatments, symptoms, and any correspondence with healthcare providers. This can be therapeutic and will also be valuable if you decide to pursue a medical negligence claim.

3. Obtain your medical records

Request copies of all relevant medical records as soon as possible. This information is crucial for understanding what occurred and preparing for any potential legal action.

4. Seek a second opinion

Consider consulting another medical specialist to assess your condition and the treatment you received.

5. Consult a medical negligence lawyer

Speak with an experienced medical negligence lawyer who can evaluate your case and advise you on the best course of action.

GMP Law offers free initial consultations to help individuals determine if they have a viable case. Our experienced lawyers can guide you through the complex process of evaluating your situation.

The importance of timely action

While the law provides limitation periods, it’s advisable to act promptly if you suspect medical negligence.

Timely action can be beneficial for many reasons:

Evidence preservation: Medical records and other crucial evidence may become harder to obtain as time passes
Witness recollection: The memories of key witnesses may fade over time
Financial security: If you’re entitled to compensation, initiating the process earlier can help alleviate financial stress caused by medical expenses or lost income
Legal certainty: Acting within the clear limitation period avoids potential issues with seeking extensions.

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Contact us for confidential, free advice.

Real-life case studies: The impact of medical negligence

To better demonstrate how medical negligence claims work in practice, we’ll explore two recent cases handled by the medical negligence team at GMP Law.

Case study 1: Delayed diagnosis of cancer and development of steroid dependency

The case

Our client underwent radiological investigations a year apart, and on both occasions, the attending radiologists failed to identify suspicious features. As a consequence, our client’s cancer was allowed to continue advancing without diagnosis or treatment for a further six months.

Due to this delay, our client:

Was diagnosed with Addison’s syndrome
Had ongoing vision problems
Suffered a permanent steroid dependency.

Legal challenges

We faced several challenges in this case:

Establishing negligence: We needed to prove the radiologists had failed to meet the standard of care expected in their field
Causation: We had to demonstrate that the delay in diagnosis directly led to our client’s worsened condition and additional health issues
Quantifying damages: We needed to calculate the financial impact of the client’s ongoing health issues, including their inability to return to work and the need for ongoing care.

The defendants denied liability. They asserted:

The attending radiologist had done nothing wrong
Even if there was a delay in diagnosis, it wasn’t attributable to any ongoing loss suffered by our client.

The importance of legal action

Taking legal action in this case was important for:

Compensation for ongoing care: The settlement of $1.2 million provided our client with the financial means to manage their ongoing health issues and care needs
Accountability: The legal action held the medical providers accountable for their oversight, potentially preventing similar incidents in the future
Validation: For our client, the settlement represented an acknowledgement of the suffering they endured due to medical negligence.

Case study 2: Surgical error during hysterectomy

The case

Our client elected to have a hysterectomy due to ongoing symptoms. During the keyhole surgery, it was discovered that she had large uterine fibroids and adhesions, making the surgery more complex.

More than a week after surgery, our client became seriously unwell and was diagnosed with damage to her ureter, the structure that carries urine from the kidneys to the bladder.

Legal challenges

This case presented several challenges:

Proving negligence in a complex surgery: We needed to establish that the damage to the ureter was due to negligence rather than an accepted risk of the procedure
Conflicting expert opinions: The defendant obtained evidence suggesting that the surgeon had made no error, claiming that the adverse outcome was not due to any fault of the treating practitioner
Quantifying damages: Despite her injuries, our client was able to continue working and looking after herself, which could potentially impact the compensation amount.

The importance of legal action

Taking legal action in this case was important for:

Financial compensation: The six-figure settlement provided our client with compensation for her injuries and ongoing health issues
Acknowledgment of wrongdoing: It was important for our client to have the wrong done to her acknowledged by the defendant’s representative
Improved medical practices: Cases like this can lead to reviews of surgical procedures and training, potentially preventing similar incidents in the future.

Lessons learned from these case studies

These case studies highlight a few important points about medical negligence claims:

1. Complexity

These case studies highlight a few important points about medical negligence claims:

2. Time sensitivity

In both cases, legal action was taken within the required time limits, allowing the clients to seek compensation for their injuries.

3. Expert evidence

Both cases relied heavily on expert medical opinions to establish negligence and causation.

4. Negotiation skills

In both cases, settlements were reached through mediation, avoiding the need for a full court hearing. This demonstrates the importance of having lawyers skilled in negotiation.

5. Emotional closure

Beyond financial compensation, legal action provided the clients with a sense of justice and acknowledgment of their suffering.

How GMP Law can assist you

At GMP Law, our team of experienced solicitors specialising in medical negligence claims. We understand the complexities of these cases and the significant impact they can have on individuals and their families.

Our services include:

Providing a free initial consultation to assess the merits of your case
Explaining your legal rights and options
Gathering and analysing medical evidence
Engaging medical experts to support your claim
Negotiating with insurance companies and opposing parties
Representing you in court if a settlement cannot be reached
Ensuring all necessary time limits and legal requirements are met.

We approach each case with professionalism and dedication, striving to achieve the best possible outcome for our clients.

Frequently Asked Questions about medical negligence time limits

What is the time limit for medical negligence claims in Australia?

Generally, you have three years from when you discovered (or ought to have discovered) the negligence, or 12 years from when the negligent act occurred, whichever comes first. However, these limits can vary depending on the jurisdiction and specific circumstances of the case.

Can I claim for medical negligence after 20 years?

In most cases, no. There’s usually a maximum limit of 12 years from the date of the negligent act, known as the ‘long-stop’ limitation period. However, there can be rare exceptions, particularly in cases involving minors or fraud. If you’re in this situation, it’s important to seek legal advice promptly.

How does the time limit apply if I didn’t realise I was a victim of medical negligence?

This is where the concept of discoverability comes into play. The three-year limitation period typically starts from when you first become aware (or should have become aware) that:

You’ve suffered an injury or loss
The injury or loss was caused by someone else’s negligence
The injury is significant enough to justify legal action.

This means that if you only realised you were a victim of medical negligence sometime after the actual incident, you may still have time to make a claim. However, it’s important to act quickly once you do become aware.

Are there different time limits for children in medical negligence cases?

Yes, the law recognises that children (minors under 18) are in a unique position. Generally, the limitation period for a child doesn’t start running until they turn 18. This means that a person who suffered medical negligence as a child usually has until their 21st birthday to initiate a claim. However, it’s advisable not to wait this long, as evidence can become harder to obtain over time.

What if the negligent treatment was ongoing? When does the time limit start?

In cases of continuous negligent treatment, the limitation period typically starts from the last instance of negligent treatment. This can be particularly relevant in cases involving misdiagnosis or delayed diagnosis, where the negligence might have occurred over an extended period. However, determining the exact ‘end date’ of negligent treatment can be complex and may require legal and medical opinions.

What if I signed a waiver before my medical procedure?

Signing a waiver doesn’t necessarily prevent you from making a claim, nor does it alter the limitation period. Healthcare providers cannot contract out of their duty of care. If negligence occurred, you may still have a right to claim, regardless of any waiver you signed.

However, the specific terms of the waiver and the circumstances in which it was signed may be relevant to your case. A medical negligence lawyer can help you understand your rights in this situation.

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Author

Ray Abbas

Partner

With both District and Supreme Court victories, Ray Abbas is an accredited specialist in Medical Negligence and Motor Vehicle Accident (MVA) claims. He has 24+ years' experience in personal injury law and can expertly unravel complex cases to secure maximum compensation for his clients.

Learn More