Medical negligence cases are highly complex due to a number of reasons and factors that are influential to the circumstances of each case. Medical negligence claims involve thorough investigation, gathering of evidence and negotiating on behalf of the injured person with healthcare providers, the defendant’s / defendant’s lawyers and represent the victim in court. Additionally, when pursuing a medical negligence claim in Queensland (and all of Australia) there is a high burden of proof. This means, the injured person (‘the Plaintiff’) must demonstrate that the healthcare professional breached their duty of care in a way that has been the cause of the Plaintiff’s injuries.  

Time limits? ​

The legislation that governs medical negligence claims and time limits is under the Personal Injuries Proceedings Act 2002 (‘the Act’).  Section 9(A) of the Act governs the requirements of what the initial notice to the person against whom the proceeding is proposed to be started for a medical negligence claim. Initial notice must be given within the period ending on the earlier of the following: –  

a. 1 month after the claimant first instructs a law practice to act on their behalf and the proposed defendant is identified; or  

b. 9 months after the day of the medical incident happened, or if symptoms of the personal injury arising out of the accident were not immediately apparent, the first appearance of symptoms of the injury.  

The above time limit must be satisfied for a Plaintiff to start the medical negligence claim process. It is also important to know that there are ongoing time limits that are relevant and need to be stuck by throughout running a medical negligence claim.   

In addition to the above, it is therefore important to be aware that strict time limits apply for filing medical negligence claims in Queensland. The general rule of thumb is the claim must be made within three (3) years after the injury occurred or else the action will be statute barred. 

Are there exceptions to these time limits?

It is generally very difficult to bring a medical negligence claim which is outside the three (3) year time period in Queensland.  

However, there are limited circumstances where a court can extend the limitation period. These circumstances may include:  

  1. If the injury and / or damage caused by the medical negligence was not immediately apparent and the Plaintiff (injured person) only became aware later, the limitation period may start from the time the injury / damage was discovered.  
  2. If the injured person was under a legal disability at the time the negligent act occurred.  
  3. If the medical professional attempted to conceal their wrongdoing or mislead the patient regarding the cause of their injury. 
  4. The court has the ability to extend the limitation period if it is satisfied that the Plaintiff (injured person) has a reasonable excuse for bringing a claim outside the time limit.  

An example of a case where a claim which was outside the limitation period ( over three (3) years after injury) is the case of Quinn v State of Queensland (No.2) [2016] QDC 156 (‘Quinn’). In Quinn, the Plaintiff (Ms Quinn) sought an extension of the limitation period for a medical negligence claim. Her reason for the application was due to the belated receipt of an expert report that supported a finding of negligence against the surgeon who caused her injuries. The Judge applied the precedent from a previous judgement which found that the expert report constituted a material fact of a decisive character. Therefore, in Quinn, the judge applied the same reasoning and found that a belated expert report supporting a finding of negligence can constitute a material fact of a decision character and the application was granted to extend the limitation period so Quinn could pursue her claim.  

The abovementioned circumstances are not automatic and will depend on the circumstances of each case as well as up to the court’s discretion. It is therefore important to seek legal advice as soon as possible in relation to any medical negligence suspicions / injuries.  

Seek Legal Advice

Medical negligence claims are complex and there are strict time limits that are imposed which are difficult to get around. A medical negligence personal injury lawyer is able to help you determine the full extent of your injuries, ensure your rights are protected and obtain the compensation you deserve.  

Ellie White and our team at Littles are specialist personal injury lawyers who can assist you with your claim on a ‘No Win no Fee’ basis.  

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