Medical Negligence Cases – Out of Time, Out of Luck

A recent decision from the All Scotland Personal Injury Court in Edinburgh has highlighted the importance of taking good legal advice and acting upon it swiftly when it comes to medical negligence claims.

In Scotland you only have 3 years from the date when you become aware, or ought reasonably to be aware of a potential claim to either settle any claim for damages, or else to raise court proceedings to protect your right to claim compensation. The case of O’Grady v NHS Greater Glasgow and Clyde & Ors[1] acts as an important reminder of when Pursuers ought reasonably to be aware of a potential claim.

Mr O’Grady had a pituitary tumour. In March 2013 he attended the Southern General Hospital for monitoring of this tumour. At the end of the appointment he was given an appointment slip and asked to book a follow-up for one year. He failed to do so. In June 2013, his endocrinologist wrote to him with an update regarding his blood test results and reminding him to book a follow up. Mr O’Grady again failed to book the appointment.

By the end of 2013, Mr O’Grady began to feel very unwell and suspected that he may have Lyme disease. He was referred to the Infectious Diseases Unit at Monklands Hospital in July 2014. A lumbar puncture was recommended together with other tests. An appointment was arranged but he failed to attend. All other tests came back negative, and lumbar puncture was again recommended. The pursuer refused.

In June 2015, still feeling very unwell and unhappy at the treatment that he had received, Mr O’Grady took legal advice from solicitors. On 10 June 2015, following an initial meeting, the solicitors issued Mr O’Grady a letter setting out his options and explaining about the 3 year time limit to bring any claim. Letters of engagement were issued but Mr O’Grady did not return them and no file was opened on his behalf.

Mr O’Grady eventually instructed another firm of solicitors who raised court proceedings in June 2019 – more than 3 years after he had initially sought legal advice. In June 2016 he had finally been given a diagnosis which explained his symptoms; his pituitary tumour had been growing and had caused hypopituitism. He argued that the care was negligent because:

1. Endocrinology failed to follow him up
2. Infectious diseases failed to refer him to Endocrinology

He argued that had he been seen again by Endocrinology the growth of his tumour would have been noted earlier, and he would not have suffered the symptoms for such a long time.

He sued a number of parties including two Health Boards.  Both Defenders immediately took issue and argued that the case was brought out of time.  The Court agreed and the case was dismissed.

Importantly, the Sheriff ruled that on any view, Mr O’Grady must have had the requisite “knowledge” by 10 June 2015 that he had a potential medical negligence claimbecause he had gone to see his first Solicitors on that date.   Even although he did not yet have a diagnosis explaining his various symptoms, the three year “clock” for his claim had started to run, and so the case was clearly time barred by the time proceedings were in fact raised in June 2019.

This case highlights the importance of seeking good clear advice at an early stage. Claims for medical negligence are notoriously complex and require the expertise of specialist solicitors. Even identifying the date from which any client has enough “knowledge” to start the 3 year clock ticking can be far more complex than it may initially appear.

If you or a family member believe that you have a claim for medical negligence then please contact MedNegDM@drummondmiller.co.uk or call 0131 221 2538 to discuss whether you may have a claim for compensation with our specialist team based across Glasgow and Edinburgh.

 

[1] https://scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022scedin29.pdf?sfvrsn=59f33705_1