An emergency room malpractice claim is a claim that an emergency physician, physician assistant, nurse practitioner, nurse or hospital failed to evaluate, diagnose or treat a patient with the care a reasonably prudent emergency provider would have used, and that the failure caused harm. The most common pattern is a patient discharged with a harmless-sounding diagnosis who returns hours or days later far sicker.
Blank Kim Injury Law reviews emergency department claims from our Fairfax office, which, like an ER, is open 24 hours a day. We look at the triage decision, the workup, the discharge and what happened next, and we pursue claims under the Virginia Medical Malpractice Act. Attorney Robert Kim speaks Korean, and our paralegal team speaks Spanish.
What an emergency department is supposed to do
Emergency medicine works differently from a doctor’s office. The emergency physician usually does not know the patient, has limited time, and is expected to think first about the “can’t miss” diagnoses: the conditions that are dangerous if they are overlooked. A patient with chest pain needs a heart attack and a pulmonary embolism considered. A patient with a sudden severe headache needs bleeding in the brain ruled out. A patient with fever and confusion needs sepsis and meningitis considered.
The standard does not require an emergency physician to diagnose every condition on the first visit. It does require a reasonable evaluation of the dangerous possibilities, based on the patient’s symptoms and risk factors, and a safe plan for the patient who is sent home.
A federal law, the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, requires hospitals with emergency departments to provide an appropriate medical screening exam and, if an emergency condition is found, to stabilize the patient or arrange an appropriate transfer. EMTALA claims are separate from malpractice claims and have their own rules.
Conditions emergency rooms most often miss
The same diagnoses appear again and again in emergency department claims, because their early symptoms resemble something less serious:
| Missed condition | What it is often mistaken for |
|---|---|
| Stroke | Vertigo, migraine, intoxication or an inner ear problem |
| Heart attack | Heartburn, anxiety or a muscle strain, especially in women and younger patients |
| Pulmonary embolism | Anxiety, pneumonia or a panic attack |
| Sepsis | The flu, a viral illness or dehydration |
| Aortic dissection | Back strain or a heart attack treated with the wrong drugs |
| Appendicitis and bowel obstruction | Gastroenteritis or constipation |
| Cauda equina syndrome | Ordinary low back pain |
| Fractures and head bleeds after a fall or crash | Bruising or a minor concussion |
Each of these has its own page or is covered on our misdiagnosis page, which explains how missed diagnosis claims are built.
How emergency room errors happen
- Undertriage. A patient is assigned a low priority and waits in the lobby while their condition worsens.
- Anchoring. The first impression, often from triage, becomes the diagnosis, and later findings that do not fit are ignored.
- Incomplete workup. A test that the symptoms call for, such as a CT scan, an ECG or a blood test, is never ordered.
- Test results not acted on. An abnormal lab or imaging result comes back after the patient is discharged, and nobody calls.
- Handoff failures. At shift change, a pending concern is not passed to the incoming physician.
- Unsafe discharge. A patient is sent home without clear instructions on when to return, or while vital signs are still abnormal.
- Communication barriers. A patient who speaks limited English is examined without a qualified interpreter, and key symptoms are lost.
Overcrowding and staffing shortages explain many of these failures, but they do not excuse them. The standard of care applies on the busiest night of the year as on the quietest.
Who is responsible for an emergency room error
Emergency departments in Northern Virginia, including the busy departments at Inova Fairfax Medical Campus and the region’s community hospitals and freestanding ERs, are often staffed by physician groups under contract rather than by hospital employees. Radiologists who read ER scans may work remotely. Nurses are usually hospital employees.
Because of this, the claim may involve the emergency physician and their group, a physician assistant or nurse practitioner, a radiologist, the hospital, or several of them. We identify every provider who touched the case and the entity responsible for each one. Care at a federal facility, such as a military or Veterans Affairs hospital, follows different rules under the Federal Tort Claims Act, including an administrative claim within two years under 28 U.S.C. § 2401(b).
Virginia law that shapes an ER malpractice claim
- Standard of care. Virginia uses a statewide standard, so an emergency physician in Fairfax is measured against a reasonably prudent emergency physician anywhere in Virginia. Va. Code § 8.01-581.20.
- Expert certification. A qualified expert witness must support the claim in writing before the lawsuit is served. Va. Code § 8.01-20.1.
- Deadline. Generally two years from the negligent act, usually the ER visit itself. Va. Code § 8.01-243(A).
- Damages cap. Total damages in a malpractice case are capped, with the amount adjusted each July 1. Va. Code § 8.01-581.15.
Read the full explanation in our guide to Virginia medical malpractice laws.
What to do after a bad emergency room experience
- If your symptoms are getting worse, go back or call 911. Do not wait because you were told it was nothing.
- Keep your discharge papers. They record the diagnosis, the instructions and the time you left.
- Write down a timeline: when you arrived, how long you waited, who examined you and what you told them.
- Request your records, including triage notes, nursing notes, test results and imaging.
- Get a free case review before speaking with the hospital’s risk management office or signing anything.
If a family member died after being sent home, our page on medical malpractice wrongful death explains how those claims work in Virginia.
