Thinking of Lodging a Clinical Negligence Claim? You Need to Act Promptly

Those who delay lodging clinical negligence or personal injury claims take a serious risk that their cases will be dismissed without a hearing. However, as a High Court ruling showed, even legal deadlines sometimes come second to the overriding requirements of justice.

The case concerned an eminent doctor who, in 2007, consulted a leading pathologist about a lesion on his back. Cell samples were taken and the pathologist reported them as being benign. He was discharged without follow-up treatment. Sadly, however, the lesion returned in 2009.

Examination of further samples confirmed the presence of malignant melanoma. A report also indicated that malignancy was present in the 2007 samples. The lesion was removed but, in 2013, he was diagnosed with metastatic melanoma which caused his death the following year, at the age of 61.

After his widow launched a compensation claim against the pathologist in 2022, the pathologist argued that her case should not be permitted to proceed in that it had been brought far outside the three-year time limit prescribed by the Limitation Act 1980. She contended that the widow's claim had been lodged 10 years too late and that the limitation period had expired even before her husband died.

Ruling on the matter, the Court found that time began to run in June 2013 when the man became aware that his condition was serious and terminal. On that basis, he would have had until June 2016 to bring proceedings. His right to take legal action thus remained vested in him when he died.

Following her bereavement, his widow had a further three years in which to lodge a loss of dependency claim under the Fatal Accidents Act 1976. That limitation period expired in January 2017 and her claim had therefore been lodged about five and a half years beyond the deadline.

In exercising its discretion under Section 33 of the Limitation Act to disapply the time limit, however, the Court noted that the widow was in no way responsible for the delay in launching her claim. Whilst acknowledging the impact that its ruling would have on the pathologist, who had previously been told that the case against her would not proceed, the Court found that the overall balance of justice came down in favour of permitting the widow to pursue her claim.

The pathologist would suffer prejudice in that she would be required to face a claim relating to events that occurred over 15 years ago, of which she had no recollection. The 2007 samples, however, remained extant and the outcome of the case was likely to hinge not on her memory but on expert evidence. The Court found that the prejudice to her was outweighed by the prejudice that the widow would suffer were her claim dismissed on grounds of delay.