Time limits for medical negligence claims in Victoria

After being injured while getting medical treatment in Victoria, people often ask us, “Am I out of time to make a claim for compensation?” The short answer is that despite the fact that there are strict time limits to making compensation claims for medical negligence, getting advice and finding out your rights and entitlements is free and easy.

And although there are strict time limits to making a claim against a doctor, hospital or other medical provider, we recommend you get advice and start taking steps to investigate as soon as practicable. Part of the reason for this is that claims for compensation for medical negligence need to be thoroughly investigated and can take months or years to resolve.

In medical negligence claims, the concept of “time” is not straightforward – and depends heavily on what you knew (or should have known) and when.

Because of this, it can be difficult to generalise about how long a person has to bring a claim for compensation.

But in Victoria, as a general rule of thumb there are two sets of time limits that can apply.

In a medical negligence claim, adults must bring a claim within 3 years from the date they discover or should have discovered all the following facts:

1. That an injury has occurred;
2. That the injury was caused by the fault of another;
3. That the injury is sufficiently serious to justify bringing a claim.

If a child or a person under a disability has been injured then the claim must be commenced within 6 years of the date that the above facts were or should have been discovered.

You must act reasonably to take steps to discover these facts. Delay in discovering

these facts may prevent you from being allowed to make a claim for compensation.

The effect of the long stop time limit is that no claim can be brought 12 years after the actual date the injury occurred, regardless of when you discovered (or should have discovered) who was at fault or that the injuries are sufficiently serious to merit bringing a claim.

You may be able to apply to a Court to extend the time limit to claim compensation. This can be expensive and any delay in bringing a claim must be explained, and there is no guarantee that a Court will allow you an extension.

• A surgeon leaves surgical material inside a patient in 2001 (yes, it has happened).
• The patient knows that they have abdominal problems soon after the surgery, but has no reason to believe that an error by the surgeon or hospital staff is the cause of the problems.
• In the 2014 the patient has an x-ray that reveals the surgical material that has been present for 13 years. The effect of the “long-stop” limitation period is that despite not knowing that the hospital or surgeon were at fault, the patient is out of time to bring a claim for compensation. The patient engages a specialist medical negligence lawyer as soon as they become aware of the nature of their injuries.
• The lawyer acts promptly to apply for an extension of time so that the injured patient can be allowed to make their claim for compensation for medical negligence.

If you do not act within these time limits, you might miss out on the compensation that you are entitled to, so it is important to act promptly.

However, if you do miss these time limits, you may be able to apply for an extension of time to bring your claim. It is imperative you seek expert advice from a lawyer experienced in medical negligence claims.

When considering whether to grant an extension of time, one of the factors a Court will consider is when you became aware of your right to bring a claim.

Because of this, now that you’ve started looking into making a claim, it is important that you don’t delay.

If you have missed a time limit or you’re unsure if you are able to pursue a claim, do not simply assume you have no other options. Contact today’s blog writer and personal injury lawyer Ariella Stephenson for a free initial consultation to check your rights and entitlements.