How long do I have to sue for medical misconduct in NSW?

Is there a time limit in bringing forward a medical malpractice claim? 

Yes, there is a time limit within which you must bring forward a medical malpractice claim. It is shorter than many people realise, and some claimants lose their right to have their medical negligence claims resolved in court because they miss the deadline. If you suspect that you have been harmed because of the negligence of a medical professional, do not delay. You should seek competent legal assistance as soon as possible.

Under the Limitations Act 1969, the time limit is set as the earlier of:

• 3 years from the date of discoverability of a cause of action; or 
• 12 years from the date of the negligence. 

There is more to this two-part test than meets the eye. There are also circumstances under which a court may grant an extension, but these situations are vanishingly rare.

What is the date of discoverability?

In layperson’s terms, this means the date someone either knew or reasonably should have known that they were harmed by medical negligence. This part of the rule depends on the date the negligence is discovered, not the date the harm happened or is discovered.

Sometimes it is immediately obvious, as when a surgeon amputates the wrong limb. Sometimes the negligence remains hidden for a much longer time, as when a patient is in pain or distress or loses some functionality without immediately realising the cause. It may be that a drug was negligently misprescribed or a treatment negligently rendered, for example.  

The standard presumes that a reasonable person would take reasonable steps reasonably promptly to discover the cause of the distress. If the injured person does not take these steps, the date of discoverability will be established as the date they should have been able to discover the cause. That, of course, can be a very fact-specific inquiry and the source of much litigation.

Once the date of discoverability is established, the injured person has only three years to commence a lawsuit. In fact, since the date of discoverability is generally established after the fact, the rule really means that plaintiff must have already brought his or her claim. Plaintiffs are frequently advised not to wait for absolute certainty before bringing forward a claim.

Date of negligence

Alternatively, a plaintiff must bring forward a claim within 12 years of the date that the negligence occurred, but only if that date is before three years have elapsed from the date of discoverability. This essentially acts as a sunset clause that prevents very old medical negligence claims from being brought forward even if the negligence could not have been realistically discovered until long after it happened. 

Under either standard, the time period can be very short for someone in deepening physical distress from what may be an unknown cause.

Exceptions

Simply for the sake of completeness, it should be noted that courts may occasionally make exceptions to these time limits depending on:

• the reasons for the delay in bringing forth a claim;
•  whether the medical professional induced the delay; or 
• the nature and extent of the patient’s injury, including the patient’s disability. 

The possibility of an extension should not be part of any injured person’s litigation strategy, however. Further, there are many practical reasons to begin litigation as early as possible. Evidence can be lost, witness may die or disappear and memories may fade.

If you believe you have been the victim of medical malpractice, do not delay to bring forward your claim. The attorneys at Owen Hodge Lawyers can help make certain that you do not lose your legal right to financial recompense. Please call us as soon as possible to schedule a consultation at 1800 770 780.