All personal injury claims are subject to time limits known as the limitation period. If you have been injured through no fault of your own, bringing a claim within the limitation period is crucial for recovering compensation.
Medical negligence claims must be commenced within the limitation period as well. However, these cases often involve unique circumstances that may extend the time to file a claim after the basic limitation period elapses.
You do not want to miss the opportunity to file a claim and recover damages related to errors in medical care. It is important to contact a Vancouver medical malpractice lawyer as soon as possible. Klein Lawyers can review your claim for free.
What Is the Basic Limitation Period for Medical Malpractice Claims?
The Limitation Act is the legislation that sets time limits for bringing legal claims in British Columbia. Generally, claims involving personal injury (including those related to medical malpractice) must be commenced within two years of the discovery of the injury.
As defined by Part 1, Division 2 of the BC Limitation Act, “discovery” occurs on the first day that a plaintiff knows or should reasonably know the following:
- “that injury, loss or damage had occurred;
- “that the injury, loss or damage was caused by or contributed to by an act or omission;
- “that the act or omission was that of the person against whom the claim is or may be made;
- “that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.”
Most personal injury claims originate from a clear instance of negligence. As such, the limitation period typically begins on the day that the accident or injury occurred.
Discovery can be much more challenging in medical malpractice claims. Some instances of negligence (such as administration of a medication to a patient with a known drug allergy who immediately goes into anaphylactic shock) are discovered immediately.
However, other types of medical errors may only become apparent when a patient experiences adverse effects a number of years after receiving negligent treatment. For example, complications from a foreign object left inside of a patient during surgery (a common surgical error) may not arise until years after the procedure.
How Does the ‘Discovery Rule’ Affect My Medical Malpractice Claim?
The discovery requirements can provide patients harmed by medical negligence with additional time to pursue a claim for compensation. However, there is no guarantee that the court will accept a claim brought after the end of the limitation period.
For such a claim to proceed, evidence in the plaintiff’s case must support the argument that the plaintiff did not know and could not have reasonably known that a medical error occurred and they suffered harm as a result.
You may be able to commence a medical malpractice claim after the basic limitation period (two years) if:
- You were unaware and/or could not have reasonably known that a medical error caused you harm.
- You were unaware of the injury within the limitation period (i.e., you suffered no ill effects related to the error in the two years after the malpractice occurred).
- You could not have reasonably known about the malpractice and the harm it caused within the limitation period (some complications can take years to develop).
Each of these scenarios illustrates the difficulties involved in pursuing a claim for medical malpractice. The success of your case will depend on the strength of the evidence you and your lawyer present. Testimony from medical experts will be crucial for establishing not only the nature of the medical error, how it constitutes medical negligence, how the malpractice harmed you, and who is at fault, but why the effects of the malpractice were not apparent until a later date.
These questions are virtually impossible for you as the patient to answer on your own. It is important to contact a medical malpractice lawyer as soon as possible for assistance with your claim.
What If You (or Your Child) Was a Minor at the Time of the Malpractice?
The Limitation Act also makes exceptions for claims involving minors. Legally, discovery of an injury to a minor occurs when:
- The minor reaches 19 years of age
- All four of the conditions in Part 1, Division 2 of the Limitation Act (see above) are met
The limitation period begins on whichever of these two scenarios comes later.
Medical malpractice in childhood can lead to years of hardship for a minor child. In cases of birth injury, the difficulties can last a lifetime.
Parents and caregivers have a longer time to pursue a medical negligence claim on their child’s behalf. Nonetheless, it is important to recognize that a limitation period exists. Children harmed by malpractice may need to file their own claims after they turn 19 or the medical injury is not discovered until after they reach adulthood.
Don’t Delay – Start Building Your Medical Negligence Claim
The nuances of medical malpractice litigation combined with the laws governing limitation periods in BC create a grey area for how long patients have to make a claim. It is always best to err on the side of caution and speak to a lawyer as soon as possible.
Klein Lawyers understands the complexities of medical malpractice claims. Our team will take prompt action on your behalf, collecting all of the necessary evidence, hiring the experts, and pursuing the compensation you deserve.
Please call Klein Lawyers at (604) 874-7171 today for a free case review with a Vancouver medical malpractice lawyer. Our law firm serves clients throughout British Columbia.