Medical Negligence/Clinical Negligence re weight loss surgery.

[NotMyFinestMoment]

I am looking for some advice please.

I had a gastric band privately fitted close to 3 years ago. The surgeon agreed in advance of the surgery to repair a hiatus hernia at the time of the surgery and before fitting the gastric band but failed to to do so. The 3 year anniversary of the operation is up within a matter of weeks (4-6) and I'm struggling to find a law firm who will take it on and only on the grounds of time. It appears to be a valuable claim but the problem is the lack of time. I've just found out last month definitively that I still have the hernia, and have some documentation that proves I had it at the time of the surgery despite the fact that surgeon claimed I didn't have one. I am also now going to need surgery to correct the surgeons mistake and expect to find out the next steps in the next few days. Can anyone tell me how to protect this claim from expiring??! Does anyone know if I can file something at court to protect the 3 year anniversary whilst trying to locate a solicitor. TIA.

I think you’re out of luck unfortunately. It will take much longer than 4-6 weeks to resolve this so the solicitors are correct to decline.

The courts rarely extend the deadline, only for truly mitigating circumstances. If the solicitors haven’t told you that the court would likely consider/accept your mitigation, it’s a bad sign unfortunately.

According to this website:

There are circumstances where it is difficult to identify the exact date when the negligence occurred and therefore when the 3 year time limit begins to run. In this situation the limitation period starts to run from the ‘date of knowledge’ of the injured person. There are 3 main requirements to be satisfied before a claimant can be said to have ‘knowledge’:

That the injury in question was significant;
That the 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.
A common example of this is where there has been a delayed diagnosis. The negligence occurs at the time when the medical professional(s) first missed the diagnosis. A patient is unlikely to be aware that a diagnosis was missed or that there is a significant injury, until they are actually diagnosed and this can be months or even years later. Therefore, the later date would be the date of knowledge and they would have 3 years from that date to bring a claim.

Perhaps contact that firm to see what they suggest?

Was it private surgery or NHS? If it was a NHS hospital in England or Wales there is an agreement in place that says that provided you have an agreement in writing with the defendant NHS trust, then limitation will stop running temporarily due to the covid pressures on the NHS. It's called the Covid protocol.

Alternatively you will either need to get written agreement from the Defendant to effectively extend the limitation period or you will need to issue court proceedings on a protective basis (which will buy you an extra 4 months but is not to be undertaken lightly). Try calling the Law Society to get a list of solicitors that specialise in medical negligence.

I should say that the firm you choose will need to have signed up to the protocol (I think most have) and limitation can't have already expired. You need to seek advice urgently if you can

With some forms of negligence time runs from when you discovered the negligence. Have you mentioned this? Why sue? Why not just ask for the surgery to be done for free as you have already paid. Hernias are keyhole surgery