One stubborn misconception circulates about limitation with medical errors: that an absolute limit of twenty years always applies and that after that your right has disappeared come what may. For personal injury that has not been correct since 1 February 2004.
Which period applies to your case depends on the category your situation falls into. Those categories are set out below, followed by the rules on interruption and a timeline.
Which period applies?
| Your situation | Period | Legal basis |
|---|---|---|
| Loss caused by injury or death, event on or after 1 February 2004 | Five years after the day following the one on which you became aware of both the loss and the person liable. No absolute period of twenty years | Article 3:310(5) of the Dutch Civil Code |
| Loss caused by injury or death, event before 1 February 2004 | Five years after becoming aware, and in any event twenty years after the event | Article 3:310(1) of the Civil Code, via article 119c of the Transitional Act for the new Civil Code |
| The injured party was a minor when the loss and the liable party became known | Five years after the day following the one on which the injured party reached the age of majority | Article 3:310(5) of the Civil Code, second sentence |
| Loss other than injury or death (for instance only damage to property) | Five years after becoming aware, and in any event twenty years after the event | Article 3:310(1) of the Civil Code |
| The event constitutes a criminal offence under Dutch law | The claim against the perpetrator does not become time-barred for as long as the right to prosecute has not lapsed | Article 3:310(4) of the Civil Code |
The core. With injury or death, only the subjective period of five years has applied since 1 February 2004. If you discover only after thirty years that an error caused your complaints, your claim is not automatically time-barred: the clock only starts running at the moment of awareness. For events before that date the twenty-year period does continue to apply, because article 3:310(5) of the Civil Code does not apply to them.
So always establish first: is there injury or death, and when did the event take place? Those two questions determine your category.
About that transitional law. Paragraph 5 was added by the Limitation of Personal Injury Claims Act (Stb. 2003, 495). The transitional law is set out in article 119c of the Transitional Act for the new Civil Code and is unambiguous: “Article 310(5) of Book 3 applies to loss-causing events that have taken place from 1 February 2004 onwards.” So what is decisive is the date of the loss-causing event, not the date on which you discovered the loss and not the date on which you bring your claim either. If the treatment or procedure took place on or after 1 February 2004, only the period of five years after awareness applies. If it took place before that, the absolute period of twenty years in paragraph 1 continues to apply in full, however late you discover the error.
When does the period start running?
The five-year period starts on the day after the one on which you became aware of two things at the same time:
- The loss. Not every complaint is loss in the legal sense. What matters is that you are actually aware of loss for which another party can be liable.
- The person liable. If you do know that there is loss but not who is liable for it, this requirement has not yet been met.
For as long as one of the two is missing, the period has not started running. The case law looks in that connection at actual awareness, and not merely at what you could have suspected. At the same time it is not a free pass: anyone who ignores signals and does nothing can later be told that they knew enough at an earlier stage.
Be careful with this. Whether and when that awareness arose is pre-eminently a question assessed per file on the basis of the concrete facts: the medical documents, the moment at which you obtained a second opinion, and what was said in the conversations with the treating practitioner. Do not go by a general rule of thumb or an online period calculator. Have the dates assessed on the basis of your own file.
Limitation and a forfeiture period are not the same thing
Two concepts that are often mixed up, while the consequences differ greatly.
- Limitation can be interrupted. If you do that in time and in the right way, a new period starts running. Moreover the court does not apply limitation of its own motion: the other party must invoke it itself. If the doctor, the hospital or the insurer does not do so, the claim remains capable of being dealt with.
- A forfeiture period cannot be interrupted. If it expires, the right lapses by operation of law. Forfeiture periods are less common in the law of liability, but do occur for instance in complaints procedures and in policy conditions.
If a claim is also running with an insurer, allow for a third clock: under article 7:942 of the Civil Code a claim against the insurer for payment becomes time-barred on the expiry of three years after the day following the one on which you became aware that it was due.
Interruption: form, addressee and receipt
Interruption is the act by which you break the running of the limitation period. The statute names three ways.
1. A written demand or communication (article 3:317 of the Civil Code)
The limitation of a claim for performance is interrupted by a written demand, or by a written communication in which you unambiguously reserve your right to performance. That is the most used route.
Note the word unambiguously. A letter in which you ask for an explanation, for the medical file or for a conversation is not an interruption. The other party must be able to infer from your message that you are expressly maintaining your claim for compensation.
For claims that are not for the performance of an obligation, paragraph 2 applies: a written demand only interrupts if an act of legal prosecution follows within six months.
2. An act of legal prosecution (article 3:316 of the Civil Code)
Bringing a claim interrupts the limitation period. If that claim does not lead to an award, the limitation period is only interrupted if within six months of the end of the proceedings a new claim is brought that is awarded after all. If an act of legal prosecution is withdrawn, it does not interrupt. An act aimed at obtaining a binding opinion can also interrupt, provided that it is communicated to the other party with due speed and that the opinion is in fact given.
3. Acknowledgement (article 3:318 of the Civil Code)
Acknowledgement of the right interrupts the limitation period, but only against the party that acknowledges. That is an important restriction. If the liability insurer acknowledges something, that does not automatically operate against the hospital, and vice versa. Acknowledging "that things turned out unpleasantly" or offering apologies is moreover not an acknowledgement of the right to compensation.
Who do you send the interruption letter to?
Send the letter to every party you may wish to address, each of them separately. In a medical case those are often: the hospital or the institution (usually that is the liable party, including for errors by its staff), the individual treating practitioner where they work independently, and, for good order, the liability insurer as well. A letter to the insurer alone does not necessarily interrupt the limitation period against the hospital.
Proof of receipt
An interruption letter only works once it has reached the addressee. So send it by registered post, or by e-mail with a read receipt and an ordinary copy by post, and keep the proof of sending. Note the date: from the day after the interruption a new period starts running, equal to the original one but no longer than five years (article 3:319 of the Civil Code). If the case runs for a long time, repeat the interruption in good time, well before the end of each new period.
Model letter for interruption
Use this as a basis and adapt it to your file. Preferably have the letter checked before you send it: a wrongly worded letter can create the impression that there has been an interruption when there has not.
By registered post
Re: interruption of the limitation period, [name of patient], [date of birth], [file or patient number]
Dear Sir or Madam,
On my own behalf I write to inform you as follows. On [date], [a short, factual description of the treatment] took place in your institution. I hold you liable for the loss I have suffered and will still suffer as a result of the acts or omissions surrounding that treatment.
I hereby unambiguously reserve all my rights to performance and to compensation of this loss, and thereby interrupt the limitation of my claim, including within the meaning of article 3:317 of the Dutch Civil Code. This communication relates to all heads of loss, both material and non-material, known and as yet unknown.
I ask you to confirm receipt of this letter in writing and to forward it to your liability insurer, stating that insurer’s name and file reference.
This letter does not involve any waiver of any right.
Yours faithfully,
[name, address, date, signature]
Send an identical letter separately to each party you are addressing.
Timeline: which dates do you record?
- The date of the treatment or procedure. This determines whether your case falls before or after 1 February 2004.
- The date on which you developed complaints and what you were told at the time about the cause.
- The date on which you learned that an error may have been made. For instance through a second opinion, an investigation into an incident or a conversation with another doctor. Keep the document showing that.
- The date on which it became clear who is liable.
- The date of each interruption letter, with proof of sending and the acknowledgement of receipt.
- Your date of birth, if you were a minor at the time of the awareness.
In addition, request your medical file in good time. You are entitled to it, and without those documents the discussion about awareness can hardly be conducted.
In doubt? Have the file assessed at once
Limitation is not a sum you can settle with a rule of thumb or an online tool. The outcome depends on the nature of the loss, the date of the event, the moment of awareness, your age at the time, and on what has already been written and acknowledged. Where there is doubt only one practical rule applies: have the file assessed immediately and interrupt in the meantime if necessary, because interrupting is always possible, even if it turns out afterwards that it was not yet needed.
If it concerns a missed or incorrect diagnosis, also read our article on the wrong diagnosis. With an error by a dentist or oral surgeon you can turn to our article on the medical error at the dentist or oral surgeon. If a medication or dosage error is at issue, see the wrong medication or a dosage error.
Contact us without obligation and keep the dates and your medical documents to hand.
Frequently asked questions
Does an outer limit of twenty years always apply?
No. With loss caused by injury or death, only the period of five years after becoming aware of both the loss and the person liable has applied since 1 February 2004. Article 3:310(5) of the Civil Code, added by the Limitation of Personal Injury Claims Act, sets aside the absolute period of twenty years for those cases. Transitional law does apply. Article 119c of the Transitional Act for the new Civil Code provides that paragraph 5 applies to loss-causing events that have taken place from 1 February 2004 onwards. If the treatment or procedure took place before that date, the twenty-year period in paragraph 1 continues to apply. What is decisive is the date of the event itself, not the moment at which you discovered the error.
Who must an interruption letter be sent to?
To every party you may wish to hold liable, and to each of them separately. In medical cases those are usually the hospital or the institution, the individually practising treating practitioner where they are independent, and in addition the liability insurer. A letter to the insurer alone does not necessarily interrupt the limitation period against the hospital. The same applies to acknowledgement: under article 3:318 of the Civil Code that only interrupts the limitation period against the party that acknowledges.
What must an interruption letter contain?
You must unambiguously reserve your right to performance, as article 3:317 of the Civil Code puts it. A letter in which you ask for an explanation, for the medical file or for a conversation is not an interruption. The other party must be able to infer from your message that you are expressly maintaining your claim for compensation. Send it by registered post or with a read receipt and keep the proof of sending, because the letter only works once it has reached the addressee. From the day after the interruption a new period starts, equal to the original one but no more than five years.
Does the court apply limitation automatically?
No. Limitation does not operate of its own accord: the other party must invoke it itself. If the hospital or the insurer does not do so, the case is simply dealt with on its merits. That is an essential difference from a forfeiture period, which operates by operation of law and which you also cannot interrupt. Do not, however, count on a plea of limitation being omitted; always treat the period as if it were hard.