Am I too late to make a medical negligence claim?

The honest answer is: not necessarily.

While the general time limit for bringing a medical negligence claim is three years, there are several important exceptions, nuances and discretionary powers that mean your case may still be investigated even if the limitation period has passed or is fast approaching.

Unlike other solicitors, our firm here at Medical Solicitors does not automatically turn away “late” cases, and in fact we regularly take on claims other lawyers have refused.

Many people reach out to us feeling worried, embarrassed or resigned because they believe the three-year limitation period has already passed and there is nothing they can do. However, medical negligence law can often be more flexible than it appears, so it’s still worth seeking advice even if you’re unsure about the timing.

In this blog, we explain how the time limits work, when you may still have options, and provide real-world examples of why we were able to investigate cases that appeared to be out of time.

Understanding the Limitation Period

Time limits for civil claims are governed by section 11 of the Limitation Act 1980. Under this act, you usually have:

• Three years from the date of the negligent treatment, or
• Three years from the date you first knew (or could reasonably have known) that your injury was caused by medical negligence.

This “date of knowledge” rule is crucial. Many people don’t realise immediately that something has gone wrong, or that earlier treatment was the cause of their later illness or complications.

For example, if you had negligent hip replacement surgery in January 2026 that led to an infection, the time limit would expiry on the same date in January 2029. However, if you were unaware that the surgery was negligent until a later date, say for instance the hip replacement failed months later due to improper technique or positioning, the limitation period would only start once you “acquire knowledge” and are informed that something went wrong with the initial surgery.

Knowledge is also objective, based on what the average reasonable person ought to know. A potential claimant doesn’t need to know that what happened to them was negligent, rather that there was an injury or illness caused, this was caused by medical treatment, and that a medical professional or organisation caused it.

Why is there a Limitation Period?

As with all civil cases, the limitation period in medical negligence claims is there to ensure fairness, legal certainty and efficiency – but mostly in favour of the defendant.

It protects medical professionals against the shadow of ancient claims, stopping patients from filing a case many, many years after the original treatment.

Over time, evidence can be lost and memories fade. A time limit ensures that witnesses can recall events accurately, documents are available, and a fair judgment can be made.

Expiry of the limitation period is a defence medical professionals may choose to use to stop a claim succeeding. In their limitation guidance to staff, NHS Resolution, the legal arm of the NHS, strictly advises that they should not waiver that statutory defence under any circumstances.

However, an unreasonable refusal to agree a time moratorium may also be construed adversely and affect the way a claim is managed moving forward, as costs can be incurred if a claimant is forced to issue proceedings prematurely.

The defendant cannot simply argue that their memory has faded to claim disadvantage. They should assess whether records are missing or destroyed, whether staff involved are still employed or are easily contactable to give statements, and whether existing staff recall the incident or standard of practice at the time.

What are the exceptions to the three-year medical negligence time limit?

If a case has not formally started by issuing a claim form to the Court by the end of a three-year limitation period, the general rule is that the claimant will be statute barred from pursuing a claim.

There are exceptions to the rule which are as follows:

• Children – the limitation period for cases involving children begins on their 18th birthday, so they will have until they reach 21 to make a claim
• Lack of capacity – If a claimant lacks mental capacity, there is no limitation period. If that lack of capacity is only temporary, for example due to a brain injury or mental health issue, then the three-year limitation period will begin once they regain capacity.
• Death – if a person dies following medical negligence, a claim can be made within three years of their death or when their family became aware they died due to medical negligence.

Can’t a solicitor just pause the time limit on a medical negligence claim?

Clients often ask if we can simply pause the three-year time limit.

In reality, there isn’t a simple button to press, but there are important legal tools that can preserve your position while your case is properly investigated.

If you’re worried about running out of time, or think you already have, you may hear solicitors talk about “stopping the clock” or issuing a “protective claim.”

What is a Stop the Clock agreement?

A Stop the Clock agreement, sometimes referred to as a standstill agreement or limitation moratorium, is a formal agreement between parties to pause the limitation period for a set amount of time.

This effectively buys time for both parties, allowing for negotiations or investigations to be done without missing the deadline. It can be issued if a case has already expired or if it is close to expiry.

As part of the Pre-Action Protocol, a stop the clock letter (also known as a Letter of Notification) is drafted and sent to the potential defendant(s) outlining the nature of the potential claim, that it is being looked at and seeking a time moratorium agreement to enable both parties to properly investigate.

Their response letter must explicitly state that the defendant agrees to waive their right to rely on the limitation defence for a specific period, usually six or twelve months.

Crucially, a potential defendant does not have to agree to the standstill agreement. If this happens, and the potential claimant’s solicitor feels they have a strong case, then they can issue a protective claim form in court.

What is a Protective Claim form?

A Protective Claim form is similar to the above, but bound by a court order. It is used to prevent a claim being dismissed if evidence for a case, such as an expert report, has not been fully gathered and the time limit expiration is imminent.

It is a bit like securing your place in a queue. Once issued protectively, the claim form must be served within four months; if this deadline is missed, the case will expire and the claim form will be invalid.

There also needs to  be an application to court (usually dealt with in paper without a hearing) requesting that there be a long extension of time before the proceedings carry on, to allow for the initial investigation.

What can I do if the time limit has already expired?

Even if the three-year period has technically passed, it doesn't mean the door is closed and there may still be options, particularly if:

1. Your “date of knowledge” was recent

You may have only recently become aware that your injury was linked to earlier treatment.

2. New evidence has come to light

Fresh expert opinions or medical records sometimes provide the “knowledge” a client couldn’t reasonably have had earlier.

3. The court exercises its discretion

The court can allow a claim to proceed out of time if it is fair and just to do so – a possibility that some solicitors are not keen to pursue. Success will depend on whether there is a compelling reason for why the case was not brought earlier and how strong is the evidence. The court often takes into account the severity of the injury or disability and how this has impacted the claimant’s life.

The court must also weigh up the balance of prejudice caused to the claimant by barring the claim verses the prejudice caused to the defendant for allowing it. They will look at what steps the claimant has taken to obtain evidence and also how the defendant has responded to reasonable requests for information that may help in establishing a cause of action.

Examples of expired or close to expiry cases we have taken on

These types of cases are more complex but they are not impossible and we have successfully investigated claims in these circumstances.

Stop the Clock agreement in case against GP surgery for blind claimant

A female client who was left blind in both eyes after negligent treatment by her GP approached us two years after the limitation period had ended.

The lady went to her GP in 2017 with jaw pain when eating and was prescribed paracetamol with no further action taken. When her symptoms continued, a diagnosis of salivary stones was made, but the claimant started to experience blurred vision and eventually lost sight in both eyes. She actually had giant cell arteritis, an inflammatory autoimmune condition which the GP failed to consider.

The time limit should have expired in 2020 but the claimant approached us in 2022. Due to the severity of her injury, her solicitor, Sarah Johnson, was able to secure further time through a stop the clock agreement which enabled the case to be fully investigated. The claim settled in 2024 for over £320,000 but sadly the claimant passed away from an unrelated illness the previous year.

Protective claim issued a month before expiry in nerve damage case

A female client who sustained nerve damage after pelvic stabilisation surgery approached us close to the limitation period was due to expire.

She underwent the surgery in October 2011, during which the surgeon misplaced two screws – one being far too long – resulting in nerve damage and a worsening of neuropathic pain.

The time limit should have expired in October 2014 but she approached us very close to this. Due to the timely nature and the evidence available, her lawyer, Matthew Brown, issued protective court proceedings in September 2014 – a month off expiry.

This allowed Matthew to gather further evidence from experts in orthopaedic surgery, pain management and physiotherapists before the official Letter of Claim was served. The defence was served in 2016 with limited admissions and an initial settlement offer of £15,000 which, following negotiations, was increased to £100,000.

Stop the Clock agreement for Cauda Equina case that previous solicitors dismissed

This is an on-going case that solicitor Christine Brown is handling in relation to a client who initially sought legal advice at another firm for delayed diagnosis of cauda equina syndrome.

The case only passed the limitation period because of errors and wrong advice by the previous law firm. They advised the claimant there was no evidence of breach of duty causing the injury, but they failed to identify the correct defendant NHS trust. The claim was abandoned by the previous solicitors six months before limitation was due to expire and at that time (during the pandemic lockdown) the claimant took no further action.

However, they then contacted us two years later and we agreed to look into the case for them. Christine obtained a stop the clock agreement from the correct defendant NHS trust and began investigating the case.

This is now proceeding to trial and no statute limitation defence has been raised in proceedings.

Stop the Clock agreement for birth injury case close to limitation expiry

This is another on-going case, this time relating to a woman who experienced a birth injury but only decided to pursue a claim almost three years on from the birth. As a busy new mum, litigation wasn’t her primary focus and she contacted us a month away from the limitation period expiring.

Helpfully, she had access to some medical records which gave us an understanding of what happened to her and, from that, her solicitor Esther Gaudoin drafted a letter of notification to the defendant trust requesting to extend limitation to allow us to investigate.

They have agreed and so Esther is currently looking into the case in more detail.

What to do if you think you’re out of time

If you are worried about deadlines, the most important thing is not to assume you’ve missed your chance. Many cases that appear “late” are actually still within the legal timeframe once properly analysed.

Some law firms operate strict rules and automatically turn down cases that have expired or are close to the time limit (within 12 months of it). This is because time-pressured claims have an element of risk due to the limitation period being used as a complete defence. However, we don’t shy away from these sort of claims. If your case deserves investigation, we will look at it, even if another firm has told you it’s out of time.

Medical negligence cases often involve delayed symptoms, confusing medical histories, complex records and evolving professional opinions. It is only fair - and legally correct - to give potential clients a proper assessment before deciding whether it can be pursued.

So if you believe you suffered avoidable harm, even if you think you may be out of time, contact us. A short conversation could be the difference between losing your chance to claim and discovering you still have a valid case.