What is the time limit for instituting a medical negligence claim?
Under section 27 of the Limitation Ordinance (Cap 347) (the “LO”), the limitation period for a plaintiff to make a claim for personal injury is three years from the date of the accrual of the cause of action or the date of knowledge, whichever is later. The key question is: when is the date of knowledge?
In a recent medical negligence case of Momin Lok v Hospital Authority  HKCA 1075, the Court of Appeal (the “CA”) revisited section 27 and section 30 of the LO and held that the knowledge requirement has been fulfilled when the Plaintiff had acquired the requisite knowledge that her injury was capable of being attributed to the anticoagulation medication and treatment. The Plaintiff’s misguided belief at that time in the precise manner in which the treatment resulted in injury was not so fundamental as to mean that she did not possess such requisite knowledge.
The Plaintiff had been receiving treatment from Princess Margaret Hospital (“PMH”) as she was found to have thrombus in the chief artery of her right upper arm in the second half of 2008. In particular, the PMH doctors had been prescribing warfarin to the Plaintiff. Despite the anticoagulation therapy and treatment, the Plaintiff still suffered a stroke in December 2008. The Plaintiff believed that her stroke was caused by the doctors’ negligence in prescribing warfarin rather than heparin as part of her anticoagulant therapy. The Plaintiff managed to commence an action at the District Court against the defendant in 2011 (the “District Court Action”).
However, she could not find any favourable expert medical opinion as it was suggested by the expert that the prescription of warfarin rather than heparin was proper. In 2013, the District Court Action was discontinued by her then-husband on her behalf. The Plaintiff only learnt about the discontinuance in 2014 as she returned to Hong Kong. In January 2016, further medical opinion revealed that the doctors failed to provide adequate anticoagulation to the Plaintiff with that dosage of warfarin. The Plaintiff then filed a statement of claim on 28 October 2016 accordingly. The Defendant subsequently raised a limitation defence that the Plaintiff’s action was time barred.
On a trial of preliminary issue, Bharwaney J found that the Plaintiff did not have the requisite knowledge to start time running under section 27 of the LO until within 3 years prior to the issue of the writ, and the action had therefore been brought within time. He further stated that if the action were time-barred, he would have exercised the discretionary power under section 30 of the LO to override the time limit for the action to proceed. The defendant then appealed to CA.
The Limitation Ordinance
The present case mainly deals with two issues: (i) the level of knowledge required under section 27 of the LO and (ii) when the court shall exercise its discretionary power under section 30 of the LO to disapply the time bar.
Section 27(6) of the LO provides that a person’s date of knowledge refers to the date on which he first had knowledge of the following facts:
- that the injury in question was significant;
- that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
- the identity of the defendant; and
- if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
The CA’s decision
The CA revisited the leading authorities and distilled the legal principles in respect of the requisite knowledge that will set time running:
- The word “attributable” in section 27(6)(b) means capable of being attributed to, which refers to a real possibility and not a fanciful one. This requires knowledge that the act or omission is a possible cause of the damage, which need not be a probable one;
- As to the requisite degree of certainty, the Plaintiff does not have to know for certain and beyond possibility of contradiction. Time starts to run when a reasonable person with the same knowledge would have regarded it certain enough to justify embarking on the preliminaries to the making of a claim for compensation, such as taking legal and other advice and collecting evidence;
- It is sufficient if the Plaintiff has a reasonable belief in attributability, even when there is inadequate evidence to support his/her claim.
Applying the above principles, the CA held that the Plaintiff has had the requisite knowledge certainly by July 2011. By that time she firmly believed that her stroke was attributable to the anticoagulation medication and treatment she received from the doctors. She reasonably embarked on preliminaries to making a claim by consulting legal advice, gathering medical records, commissioning expert opinions, and indeed commenced proceedings against the Defendant.
The favourable expert opinion obtained in 2016 did not reset the time since the information given by the experts was not the broad knowledge of the essence of her claim required under section 27(6)(b) of the LO. The Plaintiff’s mistaken belief as to the exact manner in which the anticoagulation treatment went wrong did not cause her to sue the wrong person. Therefore, time started to run despite the Plaintiff’s misunderstanding and the lack of supporting medical opinion. The CA therefore set aside Bharwaney J’s judgment that the action had been brought within time.
The CA went on to consider section 30 of the LO, which conferred the court wide and unfettered power to disapply the time limit. Taking into account the fact that (1) the Plaintiff’s delay was caused by her mistaken belief as to what precisely went wrong and the negative medical opinions received based on that belief, and (2) the District Court Action was discontinued by the Plaintiff’s then husband upon legal advice without her knowledge, the CA considered it equitable to allow the action to continue and exercised the discretion disapply the time limit.
It is easy for a layperson to be confused as to what actually went wrong in a medical procedure. While expert opinions may be helpful, it takes considerable time and perhaps multiple engagements before revealing the full picture. To safeguard their legal rights, patients should bear in mind the 3-year limit for initiating an action for personal injuries. Once they learn that the doctor’s act or omission is a possible cause of their injury and consider it reasonable to embark on the preliminaries to making a claim, it is advisable to take such preliminary steps without delay.
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2021