Sent Home From the ER and Got Worse: Emergency Room Malpractice in California

When is an emergency room mistake malpractice?

Emergency rooms are busy, and doctors there must make decisions quickly with limited information. The law accounts for that by comparing them with other reasonably careful practitioners in the same or similar circumstances. 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 those practitioners would use (CACI No. 501).

Most ER malpractice claims start with a patient who was sent home and got worse. Common examples are a stroke diagnosed as vertigo or a migraine, sepsis treated as the flu, a heart attack called anxiety or heartburn, a missed fracture or bleed on a scan, and an infection that spread after discharge. Others involve long waits in the waiting room while a patient’s condition got worse.

A claim also needs harm caused by the error. If the outcome would have been the same with proper care, there may be no case. That is why a physician who reviews ER cases has to look at the full record, including triage notes, vital signs, test results and the discharge instructions, before anyone can say whether a mistake changed what happened to you.

What every ER must do: the federal screening and stabilization rule

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. Because the law calls for an appropriate screening exam, how the exam was actually done can matter.

A patient harmed by a hospital’s EMTALA violation can sue the hospital for personal injury damages available under state law. The EMTALA claim is against the hospital, not the individual doctor, and the 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 and an ordinary malpractice claim can come from the same visit, and each has its own deadline. California’s malpractice deadline can run out first, so plan around the earliest date that might apply. A lawyer should check both as soon as possible after the visit. If the hospital is a county hospital, the six-month government claim described below adds a third date to track.

Can you sue the hospital for an ER doctor’s mistake?

Many ER doctors work for outside physician groups and are not hospital employees. A hospital can still be liable for an independent-contractor doctor’s negligence under ostensible agency, 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 Mejia, 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). ER nurses and triage staff are often hospital employees, so their decisions about who is seen first and how often vital signs are checked can also be part of the claim.

You can look up any Los Angeles County hospital in our hospital records hub, which shows each hospital’s Medicare data and state health department records in one place. Medicare also publishes each hospital’s SEP-1 percentage, which shows how often patients with severe sepsis or septic shock received appropriate care (Medicare Timely and Effective Care data). These numbers describe the hospital overall, and your claim will rest on your own chart.

County hospital and UC hospital emergency rooms

If a public entity such as a county hospital is responsible, a written government claim generally must be presented within six months after the claim accrues, before any lawsuit (Government Code 911.2). Harbor-UCLA Medical Center and Olive View-UCLA Medical Center are Los Angeles County hospitals, so the six-month claim applies to them. The claim accrues on the same date the malpractice claim would accrue under the normal statute of limitations (Government Code 901).

If the six-month deadline is missed, you can sometimes apply for leave to present a late claim, but the application must be made within a reasonable time and no later than one year after accrual (Government Code 911.4). After the county gives written notice rejecting the claim, the lawsuit generally must be filed within six months of that notice; if no proper notice is given, the limit is two years from accrual (Government Code 945.6).

California courts require patients suing public entities to meet both the government claim deadlines and the malpractice statute of limitations, including the one-year discovery rule (Carrillo v. County of Santa Clara (2023)). The six-month claim rules do not apply to claims against the UC Regents, who run Ronald Reagan UCLA Medical Center, UCLA Santa Monica Medical Center and UCLA West Valley Medical Center (Government Code 905.6). See suing a county or UC hospital.

How long do you have to sue an emergency room?

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 your intent to sue, describing the legal basis of the claim and the injuries (Code of Civil Procedure 364).

When the ER missed a diagnosis, the injury that starts these periods is the first appreciable harm, which happens when the undiagnosed condition develops into a more serious one (Drexler v. Petersen (2016) 4 Cal.App.5th 1181). The one-year period starts when you know, or have reason to suspect, that a mistake in the ER caused that harm (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93). Our guide to California malpractice deadlines lays out every rule in one place.

How an ER malpractice case is proved

Expert testimony is generally required in a California malpractice case to prove the standard of care, breach and causation (CACI No. 501, Directions for Use). In an ER case, that usually means an emergency physician who explains what a reasonably careful ER doctor would have done, and often a second physician, in the field that fits your condition, who explains how the delay changed the outcome.

In an injury case, the MICRA cap on non-economic damages in 2026 is $470,000 per category, and $650,000 per category in a wrongful death case. A single case can have up to three caps: one for doctors as a group, one for hospitals as a group, and one for unaffiliated providers (Civil Code 3333.2). That means the ER doctors and the hospital can fall under separate caps.

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. If the ER was a Kaiser emergency department and you are a Kaiser member, your claim generally goes to binding arbitration, because members agree to arbitration when they enroll.

What to do now

Request your records in writing from the ER and from any hospital that treated you afterward. 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 physician and nursing notes, vital signs, lab and imaging results with times, and the discharge instructions.

Write down when you arrived, how long you waited, what you told the staff, who saw you and what you were told at discharge. Keep the discharge papers and any bills. Do not sign anything from the hospital’s insurer or risk management office before getting advice. Then call a lawyer soon, especially if the ER belongs to the county, because the six-month claim deadline is short.

• Request the full ER chart, including triage notes and discharge instructions.
• Write down arrival time, wait time, names and what you were told.
• Do not sign anything from the hospital’s insurer.
• If it was a county ER, talk to a lawyer well before six months pass.

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

ER Missed a Stroke in California · Hospital Missed Sepsis in California · Los Angeles County hospital records · Malpractice at a County or Other Public Hospital in California

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.