Vicky Phelan’s cervical cancer misdiagnosis first came to light in 2014 following an audit of all smear tests. Separately, the same year, she underwent a second smear test which revealed she had cervical cancer. Her doctor wasn’t told about her misdiagnosis dating from 2011 until 2016, and she wasn’t informed until a further year had passed.
Strict time limits
Under our legal system there are strict time limits – known as ‘limitation periods’ – within which you are entitled to begin court proceedings seeking damages for personal injuries, including cases of misdiagnosis. The consequences of failing to begin a court action within the allowed time limits are both stark and absolute: your entitlement to be compensated vanishes the moment the limitation period expires. The Statute of Limitations means that you must bring an action for damages within two years of the date on which you suffered the injury.
A number of woman affected by the Cervical Cancer scandal have expressed to us particular concern that they may be out of time to do anything due to the time restraints of the Statute of Limitations.
Legal safeguard to prevent injustice
The law on the statute of limitations does include a safeguard to prevent limitation periods from expiring in completely unjust circumstances. As a result in most of these cervical cancer cases a woman will not be out of time to bring a case due to the “date of knowledge” argument.
The ‘date of knowledge’ ensures that the time limit does not run out before a person knew or ought to have known that they have an injury/action.
Date of Knowledge
The ‘date of knowledge’ test provides that the two-year period within which one must bring a personal injury claim will not begin to run until the date upon which you become aware of all of the following pieces of information:
You have been injured.
The injury which you have suffered is significant.
The injury was caused by the fault of someone else.
The identity of the person who caused you the injury.
The date-of-knowledge test will prevent injustice from occurring in many cases.
We have been in involved in a great number of medical negligence cases in which we successfully relied on the “date of knowledge” argument.
Female Led Women’s’ Medical Negligence Department
We, at Lynch Solicitors, have experience in representing women in a wide range of gynaecological and cancer cases . Gillian O’Mahony heads up the Women’s Medical Negligence Department at Lynch Solicitors and has successfully concluded many complex Medical Negligence actions in all areas of clinical and medical negligence litigation. Gillian joined Lynch Solicitors in 2002 and is now recognised as a leading female Medical Negligence Solicitor and has built a female support team with a particular focus on Gynaecological & Obstetric Injury Claims.