Time Limits For Bringing a Claim – The Law Needs To Be Changed
Practitioners would be aware that a patient may be able to sue a doctor after some considerable delay after the injury. The law in the area has an impact on the management of our medical practice, and in the way indemnity organisations conduct their business.
At common law there was no time limit upon a person’s right to bring an action for tort. However, the right of the citizen to a speedy hearing was acknowledged by the Magna Carta itself, and the English Parliament introduced the Limitation Act as long ago as 1623 to prevent untimely delay in civil claims.
Every State in Australia as well as the Northern Territory and the Australian Capital Territory has a statute of limitation. These statutes prevent actions for personal injury from being commenced after a prescribed time. That time is now generally three years in New South Wales, Queensland, South Australia, Tasmania and the Northern Territory, and remains six years in the rest of Australia.
Notwithstanding all these, the courts have tended to apply the statutes of limitation flexibly and to the advantage of the plaintiffs. Two recent judgments from the High Court of Australia have clarified the way these statutes are to be applied. This paper seeks to examine their relevance to the practice of medicine, and refers mainly to the NSW Limitation Act 1969 as an example; under this enactment, the limitation period is three years for events which occur after 1 September 1990; for events which occur prior to that date, the limitation period is six years. There are transitional arrangements which expire in September 1993.
The Starting Time For the Limitation Period To Run
For a minor, the time starts to run at the age of 18. For a person under a legal disability, time starts to run when he is no longer under a legal disability. Thus for an adverse event which occurs after 1 September 1990, a minor has three years after he turns 18 to sue a medical practitioner for an alleged negligence. Generally for a legally competent adult, the limitation period starts to run from the time of the injury.
Extension of the Limitation Period
The courts are given discretion under two related though separate headings to extend the limitation period. One heading refers to a situation where the judge thinks it is “just and reasonable” to grant an extension, and under this heading the judge cannot extend that period by more than five years. The other heading relates to latent injuries, and there is no limit to the extension of time under this heading.
Extension Where It Is “Just and Reasonable”
In exercising the discretion under this heading, the judge has to consider a number of matters, and in particular, the element of prejudice to the defendant occasioned by the delay. For sometime, the courts have tended to proceed on the basis that subject to compliance to some preliminary matters, the presumption favours the patient in that he is entitled to an extension of time unless the defendant can prove significant prejudice.
In a landmark case decided in October 1996 involving the Queensland Limitation of Actions Act 1974, the High Court reversed the unanimous decision of the Qld Court of Appeal, and disallowed an application by a patient to commence civil proceeding against a health authority for the alleged negligence of an employed doctor relating to a hysterectomy carried out in 1979 (Brisbane South Regional Health Authority v Taylor, 70ALJR866).
Two High Court judges upheld the decision of the District Court Judge who had found that an extension of time would be highly prejudicial to the defence case as the doctor had gone overseas and could no longer be contacted. More importantly, two other judges of the High Court held as a matter of law that the Act bestows a presumption favouring the defendant to the effect that he is prejudiced by an extension of the limitation period, and that the onus lies with the would be plaintiff to prove otherwise. Justice Kirby was the sole dissentient.
Although there are differences in the statutes of different States and Territories, the law as it relates to defendant’s prejudice is generally similar. The High Court decision in Taylor therefore has wide application.
Latent Injuries
Where a patient was unaware of “the fact, nature, extent or cause” of the injury during the period of limitation, a judge may, if it is just reasonable to do so, order that the limitation period is extended for such period as he determines.
Thus in the case of a retained intra-abdominal swab, the patient may have had abdominal pain for sometime after the operation, but he may not be aware that he has a cause of action against the hospital or the doctor until the retained swab is discovered say on Xrays long after the limitation period has expired. The court may be easily persuaded that an extension of time should granted.
The High Court in Dedousis v The Water Board [1994] 181CLR171 has given a wide interpretation of the term “cause”. This case concerned a worker who sustained hearing loss as a result of working with jackhammers. Although he had been aware for some time of the connection between his hearing loss and the noisy working environment, the High Court held that the limitation time starts to run from the time the worker became aware that the employer was in the position to protect his hearing by introducing an appropriate hearing conservation program. The triggering event is therefore the patient’s knowledge of a causal link to the alleged negligence of the defendant, rather than the event per se.
Thus on the above example relating to a retained swab, a patient may successfully argue for an extension beyond the limitation period because he made a late discovery that the hospital and surgeon were able to avoid the retention of a swab by adopting a proper system of swab counting, and that his discovery of such a risk management practice may well have been sometime after he has discovered the retained swab as the cause of his symptoms.
Statutes of Limitation in the USA
Since the malpractice crisis of the mid 1970s, most States have enacted changes in their statutes of limitation that apply to medical injury claims. The universal result is to shorten the limitation period. The most common timeframe within which a plaintiff is required to bring a medical injury claim is 2 to 3 years, counting from the act giving rise to the claim. Louisiana has the shortest timeframe – one year from the act giving rise to the injury.
Some States have also changed the discovery rule for latent injuries and suits brought by minors. Three States have an overall 10 year limit in which to bring a claim.
Conclusion
There is clearly a need for further legislative intervention in all Australian jurisdictions. The current law in Australia still means that in many negligent suits, there can be a long delay between the incident and the time the civil claim is made, and even a longer delay before the claim materialises in a trial.
Recollections by practitioners of events occurring many years prior to a hearing are often blurred. Without the support of good medical documentation, these recollections may carry little evidential weight.
By contrast, to a patient the incident is a significant event, which he or she is likely to relive daily before the trial. The patient’s evidence is usually given at the trial with conviction. To the doctor, the patient is but one of many, and often a doctor may not even be able to remember the patient let alone the incident.
The courts also tend to look at the existence of a good medical record as evidence of the doctor’s professionalism, and may even equate the perceived professionalism (or lack of it) with the doctor’s veracity.
There is a need to maintain good medical records. Given the increasingly litigious climate, and the courts’ propensity to make awards of damages, it would be wise also to keep your record as long as you can, especially for minors, where it may be prudent to keep them until the minors have reached the age of 25.
You should also notify your medical indemnity organisation early of any incident that may lead to a claim, as your indemnity organisation should be able to assist you to review your record and manage the incident early.
Lastly, it is extremely important that your indemnity cover continues long after you have retired from practice. This would generally mean that your indemnity cover should have a secure “run-off” element.
MB BS(Syd), FRCSEd., FRACS.,Dip Law (BAB),
Chairman,
United Medical Defence.