MEDICAL NEGLIGENCE CLAIMS & THE STATUTE OF LIMITATIONS

We were contacted by a new client during the week in relation to a medical negligence claim she wishes to take against her former chiropractor. The lady who contacted us is now being treated by a neurologist because the treatment from the chiropractor aggravated a pre-existing back condition and ruptured veins and nerves such that she can no longer work.

We have investigated the claim and unfortunately, because of the very strict time limits that apply to medical negligence claims, it appears that this person may be statute barred from bringing a claim against her chiropractor. 

Recent changes to the Civil Liability and Courts Act 2004 reduced the time limit for issuing such claims from three years to two years from the date of accrual of the cause of action. Medical negligence actions fall into the same category as personal injury claims for the purposes of the time limits that apply. This is in many respects unfair and illogical because medical negligence claims are usually considerably more complex and difficult to investigate when compared to personal injury claims. A further complication is the natural reluctance of a patient to explore a claim against their doctor which can delay matters further and cause serious difficulties for many plaintiffs who ultimately decide to bring a claim as they may come to this decision too late. 

It is however important to bear in mind that Section 2 of the State of Limitations (Amendment) Act 1991 includes a “date of knowledge” provision or saver. This means that a plaintiff may rely on that fact that the two year time limit does not start until they had “knowledge” of the injury. The question then becomes what constitutes “knowledge” for the purposes of the Act. 

The date of knowledge saver has been the subject of three recent Supreme Court decisions. Two of these Supreme Court cases arose out of claims against Mr Michael Neary, the gynaecologist/obstetrician who performed an inordinate number of caesarean hysterectomies at Our Lady of Lourdes Hospital in Drogheda over a 25 year period. What these decisions establish is that even a limited knowledge or strong suspicion of an injury being caused by negligence of a doctor may be sufficient to constitute knowledge and commence the two year limitation period. In one of the cases, the Court in effect held that the statue had begun to run from the moment the plaintiff wrote a letter of complaint to the Medical Council, notwithstanding the fact that she did not have a supportive medical expert report confirming negligence at that point. 

It is therefore absolutely vital that where a prospective plaintiff has a suspicion that an injury may have arisen because of negligence they seek legal advice and obtain a medical report at the earliest opportunity, and well before the two year deadline. Where claims are investigated or litigated too late and the limitation period has expired, a plaintiff whatever the severity of their injury may have no recourse to compensation or relief.

Rebecca Keatinge

Brophy Solicitors