The short answer, and the part that is not short

You have three years to raise a court action for medical negligence in Scotland. The period comes from section 17 of the Prescription and Limitation (Scotland) Act 1973, and if you do not raise proceedings within it, the claim is time-barred and the court will normally refuse to hear it.

The complication is the start date. Section 17 gives you three years from whichever of these is later: the date the injury was sustained, or the date you first knew, or could reasonably have found out, three specific things. In an ordinary accident those two dates are the same day. In medical negligence they very often are not, because the whole nature of the harm is that nobody told you at the time that anything had gone wrong.

So the useful question is not “how long do I have?” It is “when did my three years start?”

Three years from what

Where the act or omission was a continuing one — a course of treatment rather than a single operation — time runs from the date the injuries were sustained or the date the act or omission ceased, whichever is later. A misdiagnosis that persisted across eighteen months of appointments is not measured from the first appointment.

Against that, the statute runs the alternative start date: the date on which you became aware, or on which it would have been reasonably practicable for you in all the circumstances to become aware, of the three matters set out below. You get the later of the two dates, not the earlier.

The three things you have to have known

Section 17(2)(b) sets out the knowledge that starts the clock. All three are required. In the words of the statute, you must have been aware:

• that the injuries in question were sufficiently serious to justify bringing an action of damages, on the assumption that the person sued did not dispute liability;
• that the injuries were attributable in whole or in part to an act or omission; and
• that the defender was a person to whose act or omission the injuries were attributable in whole or in part, or the employer or principal of such a person.

Read the second one carefully, because it is the one people misunderstand. You do not need to have known that anybody was negligent. You do not need to have known that you had a good case, or any case. You need only to have known that your injury was attributable to something somebody did or failed to do. Knowing that the operation caused the damage is enough to start the clock, even if it took another two years to discover that the operation should never have been performed that way.

What “reasonably practicable to become aware” means for you

The clock also starts on the date it would have been reasonably practicable for you to find these things out, whether or not you actually did. This is the provision that catches people.

If the hospital wrote to you, if the discharge letter said what had happened, if you were told at a follow-up appointment, or if your general practitioner explained it, then the date of that communication is likely to be the start date, regardless of whether you understood it, filed it unread or did not act on it. Equally, if you suspected something had gone wrong and did nothing to find out for four years, a court may well conclude that it was reasonably practicable for you to have found out much sooner.

This is judged objectively, on the circumstances you were actually in. It is not a test of whether you personally got round to it.

Children: the clock does not start until sixteen

Any period during which the injured person was under legal disability by reason of nonage is disregarded. In practice that means a child injured at birth, or at five, or at twelve, has until their nineteenth birthday to raise an action: nonage in Scotland ends at sixteen, not eighteen, so the three years runs from the sixteenth birthday rather than from the injury. That is an important difference from England and Wales, where the equivalent period ends at twenty-one.

That is a long time, and it is the single most common reason a birth injury claim from many years ago is still competent. It is also why a parent who was told that “it is too late now” when the child was small may have been told something that was simply wrong.

Where the injured person could not manage their own affairs

Time is also disregarded for any period during which the injured person was under legal disability by reason of unsoundness of mind. Where negligent treatment has itself caused a brain injury or a permanent loss of capacity, the effect can be that the three years never starts to run at all.

This matters most in exactly the cases where the harm is greatest, and it is frequently missed by families who assume the claim died years ago.

If the patient has died

Where death has resulted from the injuries, section 18 applies instead. A relative has three years from the later of the date of death, or the date on which the relative became aware, or could reasonably have become aware, that the injuries were attributable to an act or omission and that the defender was the person responsible or that person’s employer.

Note what is missing from that list. The relative does not need to have known that the injuries were serious enough to justify an action, because the person has died. Note also that a fresh three-year period runs from the death, so a claim that was still in time during the person’s lifetime is not lost by the death itself.

There is a trap in section 18(4) that is easy to miss. Death does not revive a claim that was already time-barred before it. Where the deceased did not raise an action within their own section 17 period, section 18(4) provides that no action shall be brought in respect of those injuries or the death from them, subject only to the section 19A discretion. A relative who assumes the death has restarted a clock that had already expired is mistaken

The same disregard for nonage and unsoundness of mind applies to the relative.

When the three years have already gone: section 19A

Scotland has a safety valve. Under section 19A of the same Act, where a person would be entitled to bring an action but for the time limit, the court “may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision”.

That is a genuine discretion and it is exercised. It is not, however, a second chance you can rely on. The court weighs the reason for the delay, the prejudice to each side, the availability of witnesses and records, and whether the pursuer has an alternative remedy against their own advisers. A pursuer who simply left it is in a materially worse position than one who was misled.

There is another consequence of relying on section 19A that is easy to overlook. Subsection (4) removes the possibility of a jury trial: an action which would not be entertained but for section 19A shall not be tried by jury. That can matter, because Scottish personal injury damages may otherwise be assessed by a civil jury, particularly where non-pecuniary loss such as solatium is disputed.

Complaining does not stop the clock

This is the most expensive misunderstanding on this page.

The NHS complaints procedure and the Scottish Public Services Ombudsman are separate from a claim for damages and have their own, much shorter, time limits. Running a complaint does not pause, extend or interrupt the three years. A complaint that takes eighteen months to resolve has consumed half of your period, and the health board is under no obligation to remind you of that.

If you intend to do both, and there are good reasons to, they need to run in parallel rather than one after the other. See complaining about NHS treatment in Scotland for how the two processes differ.

Where Scotland differs from England

Most of what you will find online about medical negligence time limits is written for England and Wales, and although the headline three-year period is the same, the machinery is not. The Scottish period comes from the 1973 Act, not the Limitation Act 1980. The equitable discretion is section 19A, not section 33. The knowledge conditions are worded differently. And the jury consequence in section 19A(4) has no English equivalent, because personal injury jury trials are effectively unavailable there.

Do not take an English article, or an English solicitor’s website, as a statement of your position in Scotland.

If you think you may be close to the limit

Do not wait to be certain. Establishing the start date usually requires the medical records, and obtaining and reviewing them takes time that comes out of the period you are worried about.

Raising an action protects the position; nothing else does. Not a complaint, not a letter, not a conversation, and not sending an enquiry through this website. If the date is genuinely tight, that is a reason to speak to a Scottish solicitor now rather than a reason to give up.

Sources

• Prescription and Limitation (Scotland) Act 1973, section 17 (personal injuries), section 18 (death) and section 19A (equitable discretion).