ER Missed Your Stroke? How to File a Failure to Diagnose Lawsuit

ER Missed Your Stroke? How to File a Failure to Diagnose Lawsuit

Every 4 minutes, someone in the United States dies of a stroke. Strokes are the fifth leading cause of death in the United States, and a leading cause of long-term disability. What’s even more alarming is that up to 9% of strokes are initially misdiagnosed, with some studies suggesting the rate could be as high as 60% when symptoms are nonspecific. If you or a loved one has suffered due to a missed stroke diagnosis in the emergency room, you might be wondering: “ER Missed Your Stroke? How to File a Failure to Diagnose Lawsuit?”. This guide provides a comprehensive overview of your legal options.

What is a Stroke and Why is Timely Diagnosis Critical?

A stroke occurs when blood flow to the brain is interrupted, either by a blockage (ischemic stroke) or bleeding (hemorrhagic stroke). When brain cells are deprived of oxygen and nutrients, they begin to die within minutes. The consequences of a stroke can be devastating, including:

  • Paralysis
  • Speech difficulties
  • Cognitive impairment
  • Death

The Importance of the “Golden Hours”: For ischemic strokes, the most common type, a clot-busting drug called tissue plasminogen activator (tPA) can significantly reduce long-term disability if administered within 3-4.5 hours of symptom onset. This critical window is why prompt diagnosis and treatment are essential.

Why Strokes Are Missed in the ER

Several factors can contribute to a missed stroke diagnosis in the emergency room:

  • Atypical Symptoms: Strokes don’t always present with classic symptoms like sudden weakness or slurred speech. Sometimes, symptoms can be subtle or mimic other conditions, such as vertigo, seizures, or migraines.
  • Non-Specific Complaints: Patients presenting with dizziness, headache, or confusion may not be immediately recognized as stroke victims. Studies show that misdiagnosis is more frequent when these non-specific symptoms are present.
  • Lack of Urgency: Overcrowded ERs and physician fatigue can lead to delays in evaluation and treatment.
  • Failure to Follow Protocol: Hospitals have established stroke protocols that outline the steps for rapid assessment and treatment. Failure to follow these protocols can result in missed diagnoses and delayed care. These protocols include calling a stroke code, performing neurological exams, and expediting brain imaging.
  • Miscommunication: Inadequate communication between medical staff can lead to critical delays in diagnosis and treatment.
  • Incomplete Medical History: A failure to obtain a complete medical history, including risk factors like high blood pressure, diabetes, smoking, or family history of stroke, can contribute to misdiagnosis.
  • Bias: Studies suggest that strokes are missed more often in women, patients under age 45, and non-white individuals.

Legal Grounds for a Failure to Diagnose Lawsuit

If a medical professional’s negligence led to a missed stroke diagnosis and subsequent harm, you may have grounds for a medical malpractice lawsuit. To succeed in such a case, you typically need to prove the following elements:

  1. Duty of Care: The healthcare provider owed you a duty of care. This means they were responsible for providing competent medical treatment.

  2. Breach of Duty: The healthcare provider breached their duty of care by failing to meet the accepted medical standard of care. This could involve:

    • Failing to recognize stroke symptoms
    • Failing to order appropriate diagnostic tests (e.g., CT scan, MRI)
    • Misinterpreting test results
    • Failing to administer timely treatment (e.g., tPA)
    • Causation: The breach of duty directly caused your injuries or the injuries of your loved one. In other words, the delayed diagnosis and treatment worsened the outcome.

    • Damages: You suffered damages as a result of the negligence. These damages can include:

    • Medical expenses

    • Lost wages
    • Rehabilitation costs
    • Long-term care expenses
    • Pain and suffering
    • Loss of enjoyment of life
    • Funeral expenses (in cases of wrongful death)

Steps to Take After a Missed Stroke Diagnosis

If you suspect you or a loved one has been a victim of a missed stroke diagnosis, take the following steps:

  1. Seek Immediate Medical Attention: If the misdiagnosis has been corrected, ensure you are receiving appropriate and timely treatment.
  2. Gather Medical Records: Obtain copies of all relevant medical records, including ER reports, imaging results, and physician notes.
  3. Consult with a Medical Malpractice Attorney: An experienced attorney can evaluate your case, explain your legal options, and help you gather the evidence needed to support your claim.
  4. Get a Second Opinion: Consulting with another qualified medical professional can confirm the diagnosis, identify any ongoing risks, and provide documentation of any errors in prior care.
  5. Document Everything: Keep detailed records of all doctor’s visits, test results, treatments, and conversations with healthcare providers.

Types of Evidence Needed

Building a strong failure to diagnose lawsuit requires compelling evidence. This may include:

  • Medical Records: These documents provide a detailed account of your medical history, symptoms, and treatment.
  • Expert Witness Testimony: A medical expert, typically a neurologist, can review your case and provide testimony on the applicable standard of care and whether the healthcare provider deviated from that standard.
  • Hospital Protocols: These documents outline the hospital’s policies and procedures for stroke diagnosis and treatment.
  • Witness Statements: Statements from family members, friends, or other healthcare providers who witnessed the events leading to the misdiagnosis can be valuable.

Compensation Available in a Stroke Misdiagnosis Lawsuit

If you are successful in your failure to diagnose lawsuit, you may be entitled to compensation for a variety of damages, including:

  • Economic Damages: These damages are intended to compensate you for your financial losses, such as medical expenses, lost wages, and rehabilitation costs.
  • Non-Economic Damages: These damages are intended to compensate you for the intangible losses you have suffered, such as pain and suffering, emotional distress, and loss of enjoyment of life.
  • Punitive Damages: In some cases, punitive damages may be awarded to punish the healthcare provider for egregious conduct.

Statute of Limitations

It’s crucial to be aware of the statute of limitations, which sets a deadline for filing a lawsuit. The statute of limitations for medical malpractice cases varies by state, but it is typically two to three years from the date of the negligence. Consulting with an attorney as soon as possible is essential to ensure you do not miss the deadline.

Finding the Right Attorney

Choosing the right attorney is critical to the success of your case. Look for an attorney who:

  • Has experience handling medical malpractice cases, specifically those involving stroke misdiagnosis.
  • Has a strong track record of success.
  • Is knowledgeable about medical issues and can effectively communicate with medical experts.
  • Is compassionate and understanding of the challenges you are facing.

A missed stroke diagnosis can have devastating consequences, but you don’t have to face them alone. By understanding your legal rights and taking the necessary steps, you can pursue justice and recover the compensation you deserve. Contact an experienced medical malpractice attorney today to discuss your case and explore your options.