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

People are entitled to good doctors, so medical practitioners have a duty of care towards their patients. Their careers centre around good medical practice, which is imperative in dealing with something as fragile as human health.

When a doctor doesn't meet the standards of competence, time is of the essence for patients looking to make a medical negligence claim.

What is a statute of limitations?

A statute of limitations restricts the time that a plaintiff can commence proceedings following medical negligence or malpractice. In most cases, this is limited to whichever comes first:

  • Twelve years from the time of negligence.
  • Three years from the date on which the cause of action was discoverable by the plaintiff (in case the injury or harm wasn't immediately obvious).

Are there exceptions?

More flexible time limitations were put in place for society's most sensitive people. This group includes minors who are not in the custody of a parent or guardian, minors whose custodial parent or guardian is disabled, and people incapacitated by a mental disorder or an intellectual handicap.

Can I get a time extension?

It's uncommon, but not unheard of. Records by the Supreme Court Library of Queensland show a recent case in which the District Court of Queensland allowed an application for an extension of the statutory limitation period.

In the case of Quinn v State of Queensland, the applicant had to prove that the claim could not have been brought before the court within three years after the injury occurred.

Ms Quinn underwent several surgical procedures between November 2011 and March 2012 to resection her colon due to bowel cancer. She suffered several post-surgical complications including significant blood loss, lower back pain and even probably infertility. After discussing her medical situation with the new doctor and the Health Quality and Complaint Commission, she sought legal advice in July 2013.

Due to an unexplained delay by the applicant's solicitors in forwarding her medical records, expert records confirming medical negligence didn't come through until after the expiration of the limitation period.

The key issue for the Court was whether a material fact of a decisive character relating to the right to bring an action was in Ms Quinn's knowledge before this report. The state argued that Ms Quinn had all the information she needed to institute proceedings prior to the report, and that the reason why there were no steps taken was due to the negligence of her former solicitors, granting her extension.

For information on any medical negligence claim you may have, contact the team at Gerard Malouf and Partners today.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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