If the after-effects of medical negligence take time to become known, when does the time limit start?

Question

José Manuel Alburquerque · Accepted Answer

From when you genuinely know about the harm and its extent, or could have known about them from the reports you had, not from the operation or from the first symptoms. The “Tribunal Supremo”, Spain's Supreme Court, restated this in its judgment 182/2026 of 10 February, in the case of a girl whose neurological injuries took years to be diagnosed with certainty. As long as the reports describe the diagnosis as “possible”, “probable” or “suspected” and the after-effects are still developing, the time limit does not start. If the other side says that the time limit has passed, it is for them to prove when it started. Even so, it is best not to wait until everything is clear, because a written claim interrupts the time limit and can be completed once the final after-effects are known. What the Supreme Court said The parents of a girl claimed against the insurer of the “Servicio Andaluz de Salud”, the Andalusian public health service, for the neurological injuries she suffered at birth, in 2005. The court of first instance and the “Audiencia Provincial”, the provincial appeal court, held that the claim was time-barred, that is, made out of time. They counted the year from a medical report of March 2016 and the out-of-court claim was not made until June 2017. The Supreme Court held that it was not time-barred and sent the case back to the appeal court to decide on the merits. Its reasons were as follows: The time limit runs from when the claim could be brought, as article 1969 of the Spanish Civil Code (“Código Civil”) states. A claim that has not yet arisen cannot become time-barred. For the time limit to start, the injured party must genuinely be able to know the seriousness and extent of the harm. There must be a diagnosis stated without reservation and after-effects that are reasonably stable. Whoever argues that the claim is time-barred must clearly prove the day on which the time limit started, what lawyers call the “dies a quo”. Doubts about that day are not resolved against the claimant. When it matters most This case law carries most weight in neurological injuries in children, which take shape as the child develops. It also matters for harm that evolves, such as some degenerative diseases or after-effects that get worse over time. A later recognition of disability or dependency may be an indication of when the harm became settled, but it does not fix that date automatically. In Catalonia the rule is similar. The “Código Civil de Cataluña”, the Catalan Civil Code, makes the time limit start when the injured party knows, or could reasonably know, the facts on which the claim is based and against whom to bring it. What counts, therefore, is what you knew and also what you could have known from the reports you had. In the public health service, the law expressly states that the year starts on recovery or when the extent of the after-effects has been determined. If the person affected is a child, the time limit runs just the same while the parents represent the child. What protects the child is that it does not start until the diagnosis and the after-effects are firmly established. What to do The insurer will usually argue for the earliest date, normally that of the first report mentioning the problem. So make a written claim as soon as you suspect that there was an error. Keep all the reports in date order. If there are court proceedings, it will be necessary to reconstruct when each thing became known. If you have already signed an agreement or a settlement and release form, in principle it does not cover harm that was not known when you signed it.