Justice delayed is justice denied: Medical negligence statutes of limitations

Date: May 27, 2016

The team at Gerard Malouf and Partners believe medical practitioners have a duty of care towards their patients. When it is found hospitals and doctors have breached their duty of care and injured you as a patient, you may be entitled to claim compensation for your injuries.

Time is of the essence, however. Most state governments narrowed their statute of limitations over a decade ago meaning hospital and nursing negligence claims must be brought swiftly or they cannot be brought at all.

There is an exception, though, allowing greater options for minors and disabled people.

Statute of limitations: What, when and why?

A statute of limitation restricts the time within which a plaintiff can commence proceedings. A medical malpractice case cannot be brought after the expiration of the first whichever comes first:

  • three years from the date on which the cause of action was discoverable to the plaintiff
  • twelve years from the time of the negligence (or the action or omission which caused the injury through negligence)

The government narrowed the scope of compensation 12 years ago

The NSW Parliamentary Library briefing paper ‘Medical Negligence: an update’ reported on changes to the Civil Liability Amendment (Personal Responsibility) Act and Health Care Liability Act 12 years ago.

The report noted that after 2001, the NSW government capped medical negligence payouts and shortened the amount of time allowed by the statute of limitations for plaintiffs to sue those who injured them. However one provision of the Limitation Act 1969 remained which allowed society’s most sensitive people to retain the right to sue.

Minors and disabled people given more flexible time limitations

Recommendation 25 of the briefing paper is that the Health Care Liability Act and Civil Liability Acts should suspend their statute of limitations “during any period of time during which the plaintiff is a person under a disability.”

These eligible plaintiffs include:

  • minors who are not in the custody of a parent or guardian
  • people incapacitated by mental disorder or intellectual handicap
  • minors whose custodial parent or guardian is a person under a disability.

Where the parent or guardian of a minor is the potential defendant or is in a close relationship with the potential defendant, the close-relationship limitation period runs for three years from the date the plaintiff turns 25. This is because the parent or guardian might be influenced by the potential defendant not to bring the claim at all.

For free over-the-phone advice or to take advantage of our free face-to-face consultation call our expert medical negligence lawyers today on our Free Call Number 1800 004 878.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.