ER Missed a Stroke in California: When a Misdiagnosis Becomes a Malpractice Claim

When is a missed stroke malpractice?

A stroke happens when blood flow to part of the brain is blocked or a blood vessel in the brain bleeds. Some strokes show up as sudden dizziness, a bad headache, blurred vision or trouble walking, and those can be mistaken for vertigo, a migraine or an inner ear problem. Stroke treatment depends on time, because brain tissue is lost while blood flow stays blocked. A missed stroke can turn a treatable event into permanent disability.

Under California’s jury instructions, a health care professional is negligent if they fail to use the skill, knowledge and care in diagnosis and treatment that other reasonably careful practitioners would use in the same or similar circumstances (CACI No. 501). A doctor does not have to be right every time. A claim asks whether a reasonably careful emergency doctor, seeing the same symptoms and history, would have ordered imaging, called in a neurologist or kept the patient for observation.

These claims often involve a patient who was discharged with a vertigo or migraine diagnosis and came back hours or days later with a completed stroke, or a scan that was read as normal when it showed early signs. Some involve a patient who arrived within the window for treatment and waited too long to be seen. The medical record and the imaging usually show which of these happened.

What the emergency room had to do under federal law

Under the federal Emergency Medical Treatment and Labor Act (EMTALA), a Medicare-participating hospital with an emergency department must give anyone who comes to it an appropriate medical screening examination (42 U.S.C. 1395dd). If an emergency medical condition exists, the hospital must stabilize the patient or arrange an appropriate transfer, regardless of the patient’s ability to pay. A stroke that is still developing can be that kind of emergency.

A patient harmed by a hospital’s EMTALA violation can sue the hospital, though not the individual doctor under EMTALA, for the personal injury damages available under state law. That lawsuit must be filed within two years of the violation. The California Supreme Court has held that the MICRA cap applies to those damages (Barris v. County of Los Angeles (1999) 20 Cal.4th 101).

An EMTALA claim sits next to an ordinary malpractice claim, and they have different deadlines. The malpractice deadline in California can be shorter, so plan around the earliest date that could apply. If you were turned away or rushed out of an ER, read our page on emergency room malpractice in California for more on how these claims work together.

Who is responsible: the ER doctor or the hospital?

Many emergency room doctors and radiologists work for outside groups and are not hospital employees. Under ostensible agency, a hospital can still be liable for an independent-contractor doctor’s negligence when the patient looked to the hospital for care and was not put on notice that the doctor was not a hospital employee (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448). In that case the doctor was a radiologist who read the patient’s X-ray.

A California hospital also owes its own duty to patients to use reasonable care in selecting and periodically reviewing the competence of the doctors it allows to practice there (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332). That claim is about the hospital’s own conduct, separate from what the doctor did in the exam room. It can matter when a doctor with a history of problems was allowed to keep treating patients in the emergency department.

Before you talk to a lawyer, you can look up the hospital in our Los Angeles County hospital records hub. It shows each hospital’s Medicare quality data and state health department records. Those numbers describe the hospital overall. They give you and your lawyer a starting point before the chart arrives. If the ER was part of Kaiser, your claim generally goes to binding arbitration; see Kaiser misdiagnosis claims.

How long do you have to sue for a missed stroke?

A California malpractice lawsuit generally must be filed within three years after the injury or one year after the patient discovers, or reasonably should have discovered, the injury, whichever comes first (Code of Civil Procedure 340.5). Before filing, you must give the provider at least 90 days’ written notice of the intent to sue, describing the legal basis of the claim and the injuries (Code of Civil Procedure 364).

In a failure-to-diagnose case, the injury that starts these periods is the first appreciable harm from the missed diagnosis, which happens when the undiagnosed condition develops into a more serious one (Drexler v. Petersen (2016) 4 Cal.App.5th 1181). With a stroke, the one-year clock starts when you know, or have reason to suspect, that the earlier diagnosis was wrong and caused the harm (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93).

If the ER belongs to Los Angeles County, such as Harbor-UCLA Medical Center or Olive View-UCLA Medical Center, a written government claim generally must be presented within six months (Government Code 911.2). That six-month claim does not apply to UCLA’s own hospitals, which are run by the UC Regents (Government Code 905.6). Our guide to California malpractice deadlines walks through each rule.

How a missed stroke case is proved

Expert testimony is generally required in a California malpractice case to prove the standard of care, the breach and causation (CACI No. 501, Directions for Use). In a stroke case there are usually two parts. An emergency physician explains what a reasonably careful ER doctor should have done with your symptoms. A neurologist explains whether faster diagnosis and treatment would have reduced the damage.

Causation is often the hardest part. The defense may argue the stroke would have caused the same harm even with perfect care. Your imaging, the times in the chart and the treatment options that were available at that hospital all matter here. That is why the complete record, including the scans themselves and not just the reports, should be requested early.

In an injury case, the MICRA cap on non-economic damages in 2026 is $470,000 per category, and a single case can have separate caps for doctors and for hospitals (Civil Code 3333.2). Lawyer fees are capped at 25 percent if the case settles before a lawsuit or arbitration demand is filed, and 33 percent after (Business and Professions Code 6146). You owe no fees or costs unless we win.

What to do now

Request the records in writing from every ER and hospital involved. California patients and their representatives can inspect records within 5 working days of a written request and receive copies within 15 days (Health and Safety Code 123110). Ask for the triage notes, the doctor’s notes, the discharge instructions, the imaging reports and a copy of the images, and the records from any later admission for the stroke.

Write down the time your symptoms started, when you arrived, how long you waited, what you told each person and what you were told when you left. Keep the discharge papers that say migraine, vertigo or any other diagnosis. Do not sign anything from the hospital’s insurer or risk management office before getting advice, and call a lawyer soon so the deadlines can be checked.

• Request the ER chart, discharge papers, imaging reports and the images themselves.
• Write down symptom times, wait times and names.
• Do not sign anything from the provider’s insurer.
• Talk to a malpractice lawyer before the one-year period runs.

Michael Shemtoub founded Beverly Law in 2008 and has been licensed to practice law in California since 2007. He earned his law degree at UC Hastings, is admitted to practice in the U.S. District Courts for the Central and Northern Districts of California, and has tried cases to verdict. As the firm’s managing attorney, he oversees its cases.

Common questions

Related pages

Sent Home From the ER and Got Worse · Los Angeles County hospital records · California Medical Malpractice Statute of Limitations

Important: This page is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Deadlines and damage limits depend on the facts of each case; talk to a lawyer about yours. MICRA amounts are for judgments, awards and settlements in 2026. Last reviewed: November 5, 2026.