Blog
Menu
Blog

Personal Injury News

Medical Malpractice – Time Limit in Starting a Claim Against a Doctor

If you have been injured as a result of medical malpractice, the Limitation Act sets out maximum time periods in which a legal action (lawsuit) must be brought against medical practitioners.  If a lawsuit is not filed by the deadline, known as the limitation date, then the claim expires and it is voided.  It is, therefore, extremely important that the lawsuit is filed prior to limitation period in order to avoid losing all rights to compensation.

In British Columbia, the general limitation date is 2 years from the date in which the negligent treatment took place causing the injury.  In some cases, however, injured claimants do not realize that they have been injured from medical malpractice right away and instead learn about the doctor’s negligence at a much later date.  For example, if a surgery was performed and it was not discovered until months later that a foreign object was left inside the surgical site, when does the limitation date start?  Does the limitation period start on the date of the surgery or when it was discovered that there was a problem with the surgery?

At the present time, the limitation date in medical malpractice claims incorporate a “discovery principle” which set out that the time for commencing a lawsuit does not start on the date the treatment was administered, but when the injured claimant knew or ought to have known the facts upon which the action is based.  In other words, the limitation period does not start until the injured claimant knew or ought to have known about the negligent procedure.  As discussed in a previous blog post, the “discovery principle” does not apply where at a later date it is learned that the injuries are more severe than initially thought.

Accordingly, this “discovery principle” can extend the limitation period significantly in certain circumstances and it protects injured claimants who are unaware that the medical treatment was negligent and caused them injury.  Prior to this, the basic limitation period of 2 years heavily favoured doctors where there was a significant delay in the injured claimant realizing they have been injured due to his/her doctor’s negligence.

Sections 4 and 5 of the BC Limitation Act address the “discovery principle” as follows:

(4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

  • (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
  • (b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.

(5) For the purpose of subsection (4),

  • (a) “appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,
  • (b) “facts” include

    • (i)  the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and
    • (ii)  that a breach of a duty caused injury, damage or loss to the plaintiff or claimant,
  • (c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and
  • (d) if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person.

If you have a potential medical malpractice claim, it is essential that you act as soon as possible in seeking legal advice to avoid missing a limitation date.  Early action also allows the medical malpractice lawyer to investigate your potential claim fully.

At Holness and Small Law Group, our lawyers have over 20 years of experience in representing injured claimants with their medical malpractice claims.  Contact us for a free initial legal consultation to learn more about your potential medical malpractice claim.

Tags: Limitation Act, limitation period, Medical Malpractice, steps to take after medical malpractice claim

"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

read more

Schedule a Call

Contact Us





*lawyer confidentiality assured