📋 What is Emergency Room Negligence in California?

Emergency room negligence occurs when ER physicians, nurses, or hospital staff fail to meet the standard of care expected in an emergency medical setting, resulting in patient harm. While emergency medicine involves rapid decision-making under pressure, healthcare providers are still held to professional standards appropriate for the ER environment.

Common Types of ER Errors

Use this guide if you experienced:

🔍 Misdiagnosis

Heart attack dismissed as indigestion, stroke symptoms missed, appendicitis diagnosed as stomach flu

🚪 Premature Discharge

Sent home while still unstable, discharged without proper testing, inadequate discharge instructions

⏰ Triage Negligence

Failure to prioritize critical patients, excessive wait times for emergencies, improper assessment

💊 Treatment Errors

Wrong medication, incorrect dosage, failure to order necessary tests, surgical errors

👍 What You Can Recover in ER Malpractice Cases

  • Economic damages - Medical bills, lost wages, future care costs (no cap)
  • Non-economic damages - Pain, suffering, disability (MICRA cap applies)
  • Wrongful death damages - If patient died due to ER negligence
  • Interest - Pre-judgment interest on economic damages

The Emergency Room Standard of Care

📚 Modified Standard for Emergencies

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While ER physicians work under time pressure, courts recognize that the emergency setting does not eliminate the duty of care. The standard is what a reasonably competent emergency physician would do under similar circumstances. EMTALA (Emergency Medical Treatment and Labor Act) requires stabilization of all patients regardless of ability to pay.

⚖ Hospital vs. Physician Liability

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Hospitals can be directly liable for systemic failures (understaffing, equipment issues, policy failures) and vicariously liable for employee negligence. Many ER doctors are independent contractors, so determining the proper defendant is crucial. California law holds hospitals liable for negligent selection of independent contractor physicians in some circumstances.

👥 Team-Based Care Issues

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ER care involves multiple providers - triage nurses, attending physicians, specialists, radiologists, and lab technicians. Errors can occur in handoffs, communication failures, or when critical information is not communicated. Each provider in the chain may bear some responsibility for the ultimate harm.

⚠ MICRA Damage Caps Apply

California's Medical Injury Compensation Reform Act (MICRA) caps non-economic damages (pain and suffering) at $350,000 for most cases, increasing to $500,000 for wrongful death cases as of 2023, with annual increases until 2034. Economic damages (medical bills, lost wages) have no cap.

✅ Evidence Checklist

Gather these documents before sending your demand letter. Click to check off items as you collect them.

📄 Medical Records

  • ✓ Complete ER medical records and chart
  • ✓ Triage notes and vital signs records
  • ✓ Lab results and imaging reports
  • ✓ Discharge summary and instructions

📩 Timeline Documentation

  • ✓ Time of arrival and check-in
  • ✓ Wait times before being seen
  • ✓ Time stamps on all treatments
  • ✓ Discharge time and documentation

👥 Subsequent Treatment

  • ✓ Records from subsequent hospitalizations
  • ✓ Specialist consultations and reports
  • ✓ Corrective surgery records if applicable

📈 Damages Documentation

  • ✓ All medical bills (itemized)
  • ✓ Lost wage documentation from employer
  • ✓ Future care cost estimates
  • ✓ Photos of injuries (if visible)

🔒 Request Records Immediately

Under California Health & Safety Code Section 123110, you have the right to copies of your medical records within 15 days of a written request. Request all ER records, nursing notes, and any consultant reports. Hospitals may charge up to $0.25 per page plus reasonable clerical costs.

💰 Calculate Your Damages

ER malpractice damages in California are subject to MICRA caps for non-economic damages, but economic damages have no limit.

Category Description
Past Medical Expenses ER visit, hospitalization, surgeries, medications, therapy - no cap
Future Medical Costs Ongoing treatment, rehabilitation, medical equipment - no cap
Lost Wages Income lost during recovery and treatment - no cap
Loss of Earning Capacity Reduced future earning ability due to permanent injury - no cap
Pain and Suffering Physical pain, emotional distress - MICRA cap ($350K-$500K)
Loss of Consortium Spouse's claim for loss of relationship - subject to MICRA cap

💰 MICRA Cap Increases (2023-2034)

Under AB 35, non-economic damage caps increase annually. For 2024: $380,000 for injury cases, $550,000 for death cases. Caps increase by $40,000/$50,000 annually until reaching $750,000/$1,000,000 in 2034.

📊 Sample Damages Calculation

Example: Missed Heart Attack Diagnosis Leading to Cardiac Damage

Emergency surgery and hospitalization $185,000
Cardiac rehabilitation (6 months) $45,000
Future medical monitoring (lifetime) $250,000
Lost wages (8 months recovery) $72,000
Reduced earning capacity (10%) $180,000
Pain and suffering (MICRA capped) $350,000
POTENTIAL TOTAL RECOVERY $1,082,000

💡 Attorney Fee Structure Under MICRA

MICRA limits contingency fees in medical malpractice cases: 40% of first $50,000; 33.3% of next $50,000; 25% of next $500,000; 15% of amounts over $600,000. This graduated structure is designed to ensure more recovery reaches the plaintiff.

📝 Sample Language

Copy and customize these paragraphs for your demand letter. Note: CCP 364 requires a 90-day notice before filing suit.

Opening Paragraph
This letter serves as formal notice pursuant to California Code of Civil Procedure Section 364 of my intent to commence legal action for medical malpractice arising from emergency room treatment at [HOSPITAL NAME] on [DATE OF ER VISIT]. The negligent care I received resulted in [DESCRIBE INJURY/HARM], causing significant damages for which I am entitled to full compensation.
Misdiagnosis Claim
On [DATE], I presented to [HOSPITAL] emergency room with symptoms of [SYMPTOMS]. Despite these classic presentations of [ACTUAL CONDITION], I was incorrectly diagnosed with [INCORRECT DIAGNOSIS] and discharged. This misdiagnosis fell below the standard of care expected of a reasonably competent emergency physician. As a result of this delayed diagnosis, my condition deteriorated, ultimately requiring [SUBSEQUENT TREATMENT] and causing permanent injury.
Premature Discharge Claim
Despite presenting with [SYMPTOMS/CONDITION] and unstable vital signs, I was discharged from the emergency room without adequate evaluation, appropriate testing, or stabilization. The discharge occurred [TIME] after my arrival, without [DESCRIBE OMITTED CARE - e.g., cardiac monitoring, imaging, specialist consultation]. This premature discharge violated the standard of care and the hospital's obligations under EMTALA. Within [HOURS/DAYS], I was readmitted for emergency [TREATMENT].
Triage Negligence Claim
Upon arrival at [HOSPITAL] emergency room at [TIME], I reported [SYMPTOMS] - symptoms that required immediate evaluation. Despite the urgency of my condition, I was assigned a non-urgent triage level and waited [TIME PERIOD] before being seen by a physician. This delay in treatment caused [DETERIORATION/HARM]. Proper triage protocols required immediate assessment and treatment, and the failure to appropriately prioritize my care fell below the standard expected of emergency department staff.
Damages Demand
As a result of the negligent emergency room care I received, I have incurred and will continue to incur substantial damages, including: past medical expenses of $[AMOUNT]; estimated future medical costs of $[AMOUNT]; lost wages of $[AMOUNT]; and significant pain, suffering, and diminished quality of life. I hereby demand compensation in the total amount of $[AMOUNT]. Pursuant to CCP Section 364, you have 90 days to respond to this notice before I file suit.

🚀 Next Steps

What to do after sending your demand letter and understanding the medical malpractice litigation process.

The 90-Day Notice Requirement

📌 CCP Section 364 Notice

Before filing a medical malpractice lawsuit in California, you must provide 90 days written notice to each healthcare provider you intend to sue. This notice tolls (pauses) the statute of limitations for 90 days. Send the notice by certified mail, return receipt requested, and keep copies for your records.

Litigation Timeline

Day 1

Send 90-day notice letter to hospital and physicians by certified mail

Days 1-90

Gather medical records, identify expert witnesses, prepare complaint

Day 91+

File lawsuit in Superior Court if no settlement reached

Months 3-18

Discovery, depositions, expert disclosures, mediation

If They Don't Respond or Settle

  1. Consult a Medical Malpractice Attorney

    Medical malpractice cases are complex and require expert testimony. Most attorneys offer free consultations and work on contingency. Given MICRA caps on attorney fees, look for attorneys who specialize in medical malpractice.

  2. Obtain Expert Review

    Before filing suit, have your case reviewed by a qualified emergency medicine physician who can provide expert testimony. California requires a "certificate of merit" from a medical expert in some counties.

  3. File Lawsuit in Superior Court

    After the 90-day notice period expires, file your complaint in the Superior Court of the county where the malpractice occurred or where the defendant resides. You have 3 years from injury or 1 year from discovery, whichever is earlier.

Need Legal Help?

Medical malpractice cases require specialized expertise and significant resources. Get a 30-minute strategy call with a medical malpractice attorney to evaluate your case.

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California Resources

  • Medical Board of California: mbc.ca.gov - File complaints, check physician licenses
  • CA Department of Public Health: cdph.ca.gov - Hospital complaints and inspections
  • State Bar Lawyer Referral: calbar.ca.gov - Find certified specialists
  • MICRA Information: Review Civil Code 3333.2 for current damage caps