When you hear the adverts asking if you have had an accident in the last three years, there is a very specific reason for it… The law in England and Wales generally means that you have to bring a claim within three years of an accident happening. It is different for medical negligence compensation claims, and there are a lot of other factors to consider, but for medical negligence compensation it is typically three years from the date of an event.
So, what happens if you only find out that you have been the victim of negligence many years after an event?
IMPORTANT WARNING: each case should be assessed on a case by case basis with a lawyer. The information in this blog is for very general guidance only and should not be used to firmly identify the appropriate limitation date for a case, as there are many factors that must be taken in to account.
Date of knowledge is King
So you may have been the victim of medical negligence but you may have no idea that you are a victim until many years after the event. Perhaps you had surgery 15 years ago but only found out recently that something hadn’t been done right, and now you are left with further problems.
This is known as the ‘date of knowledge of negligence’ and this date can be many years after an event. You can therefore have three years from the date of knowledge of negligence in which to bring a claim.
How do I know that the ‘date of knowledge’ rule will apply?
A lot of it is down to whether you knew, or ought to have known, that something was wrong.
If you spent the last 15 or so years entirely asymptomatic until you then had problems which you sought medical advice for, and you are then told that something had not been done right, then it sounds like there was no way you could have known you were the victim of negligence until many years after.
However, if you have had symptoms and problems over the years, then you are expected to have sought medical advice for this, otherwise you may be suffering unnecessarily for decades. So if you didn’t seek advice and let the symptoms go on for years and years, and you are then told when you do finally have advice what the problem is, there is an argument from the defence side to say you ought to have sought advice earlier.
This can be known as ‘constructive knowledge’ whereby you ought to have had the opportunity to have known you were a victim of negligence at an earlier point in time.
Of course, you may have been seeking advice appropriately for all those years, and you may have eventually been told that you are the victim of medical negligence. In fact, there is an argument for misdiagnosis on top as well because you have been presenting symptoms that have not been linked to a problem with the original event.
Sometimes people are just told that their symptoms are normal until they eventually get worse and further investigation reveals that they were caused by the original event.
In a nutshell…
- Seek proper legal advice and do not rely upon this blog because it is for general guidance only!
- If you didn’t know you were the victim of negligence then the date of knowledge of negligence can occur many years down the line.
- Whether you ought to have known and / or have sought medical attention is a big factor too. If you ought to have known or could have found out then this may be held against you
- You can have three years from the ‘date of knowledge’ in the same way you have three years from the date of an accident
What is not generally accepted is the argument that you ‘didn’t know you could make a claim’ – which is presented quite a lot. Ultimately if the reason you have not claimed is because you didn’t know you could make a claim, as opposed to not knowing you were the victim of negligence, then you may have an upstream swim.
Can we help you?
We’re specialist lawyers with a long history of expertise in helping people claim for medical negligence compensation, so we can advise you. It’s always worth asking so please feel free to contact us for advice and we can assess the prospects of your proposed claim.
