When is a Limitation Period Not a Limitation Period?

When discussing limitation periods for medical indemnity claims, there is no simple explanation. Although changes to legislation and tort law reforms have tightened these limitation periods in recent years, there is a misconception that the opportunity to make a negligence claim against a medical practitioner lapses three years after a patient suffers injury and that no claim can be brought after this time. A limitation period can be extended in many circumstances. Moreover the commencement of the limitation period is now based upon additional factors to the mere timing of injury.

A limitation period can be defined as the maximum period of time that may elapse between an event and the initiation of legal proceedings relating to that event. Whilst each state has its own limitation legislation, there is much commonality. In New South Wales, there is a difference between claims arising out of alleged negligence before 6 December 2002 ("old claims") and those occurring on or after 6 December 2002 ("new claims"). The following information outlines the complexities using NSW as an example.

Limitations for Old Claims

For a claim arising out of alleged negligence before 6 December 2002, the limitation period is three years from when the damage crystallises. This is usually when the patient suffers injury. The limitation period is suspended where the patient is a child under 18, until age 18. An extension can be granted for up to five years where it can be shown it is "just and reasonable." Factors to take into consideration include length of and reasons for delay, prejudice to the practitioner, the patient's awareness of injury and relationship with alleged negligence, any conduct by the practitioner to induce the patient to delay in making a claim and steps taken by the patient to obtain legal and medical advice. An application will generally be refused if it would cause "significant prejudice" to the practitioner - this is not easy to satisfy.

Limitations for New Claims

For claims occurring on or after 6 December 2002, there are two limitation periods. The first is the three year "discoverability" period, being three years after each of the following has occurred:

• the injury has occurred;
• the injury was caused by the fault of the person against whom the patient seeks to extend the limitation period; and
• the injury was sufficiently serious to justify commencing Court proceedings.

This means that the "discoverability" period may not begin to run for some time after the original injury. "Fault" has been interpreted as being the receipt of advice from a treating practitioner or an expert witness that the care and treatment provided was deficient. Whether an injury is sufficiently serious would seem to depend upon the extent to which it interferes with the patient's life (i.e. impairment of earning capacity or need for assistance in the activities of daily living).

If the "discoverability" period has not expired within 12 years following the act or omission alleged to be negligent, there is a "long-stop" limitation period for which there can be an extension (based upon similar considerations for an extension of the limitation period for old claims). If the child has a "capable" (i.e. not under a disability) competent parent or guardian, the limitation period is based upon the "discoverability" or "long-stop" period. Accordingly, it is now more common to see claims on behalf of infants being brought soon after the injury.

Other Claim Limits

There is also a six year limitation period for claims arising before 1 September 1990. The claims prior to 1990 are typically birth injuries. There is also an ultimate bar of 30 years from when any limitation period commences.

Other Claim Limits

What all of this means is that one cannot be certain that a claim will not be brought once three years has elapsed following injury. Indeed, whether an extension will be granted for an old claim or whether the limitation period has actually expired for a new claim will very much depend upon the particular circumstances of each case. The rules permitting an extension are reasonably generous. Practitioners are well advised to hold onto their clinical records where there is any suspicion whatsoever of a possible claim at some time in the future.

Timothy Bowen
Lawyer - Health

Kerrie Chambers
Partner - Health

Ebsworth & Ebsworth Lawyers