How California Law Treats a Missed Pulmonary Embolism in the ER
Key Takeaways: You may be able to sue a San Bernardino emergency room for missing a pulmonary embolism if you can prove the ER fell below the standard of care and that this failure caused serious harm or death. California generally treats these claims as professional negligence under MICRA, so you must prove duty, breach, causation, and damages, usually with testimony from qualified physicians. ER physicians, their employers, and hospitals may be held liable, including through ostensible agency when the ER doctor is a contractor. MICRA caps noneconomic damages separately for up to three defendant categories. The caps started at $350,000 for injury and $500,000 for wrongful death in 2023 and rise every year. For 2026 they are $470,000 for injury and $650,000 for wrongful death. Economic losses such as medical bills and lost earnings have no cap. Private-provider claims generally must be filed within one year of discovering the injury or three years of the injury, whichever comes first. If a public entity runs the ER, you generally must file a government claim within six months. Because deadlines are strict and evidence fades, get your records and legal guidance quickly.
Yes, you may be able to sue a San Bernardino emergency room for missing a pulmonary embolism, but only if you can prove the ER fell below the standard of care and that this failure caused serious harm or death. A pulmonary embolism (PE) can kill within hours, so a delayed or missed diagnosis can lead to permanent heart and lung damage, brain injury from lack of oxygen, or the loss of a loved one. California generally treats these claims as professional negligence under the Medical Injury Compensation Reform Act (MICRA), which brings its own damages caps, deadlines, and proof requirements.
If you or your family is dealing with the fallout of a missed PE, you do not have to face the hospital and its insurers alone. Kampf, Schiavone & Associates helps Inland Empire families pursue accountability after catastrophic medical negligence. Call 909-885-1522 or contact us now to talk about what happened while the evidence is still fresh.
Why a Missed Pulmonary Embolism Is a Medical Emergency
A pulmonary embolism happens when a blood clot travels to the lungs and blocks blood flow, and it can be life-threatening if not treated quickly. Many PEs start as deep vein thrombosis (DVT), a clot in the leg that breaks loose and travels to the lungs.
Symptoms ER Staff Should Recognize
The warning signs of PE often overlap with other conditions, which is why careful ER evaluation matters. According to the Mayo Clinic’s PE symptom overview, common indicators include:
- Sudden shortness of breath
- Chest pain, often worse with breathing
- Rapid heart rate
- Recent surgery, immobility, or leg swelling suggesting DVT
A busy ER may label these symptoms as anxiety, pneumonia, a panic attack, or a cardiac problem and send the patient home. When a clinician fails to consider PE, or fails to order imaging such as CT pulmonary angiography, the patient can lose the window in which treatment works best.
When a Missed Diagnosis Becomes Malpractice
A missed diagnosis is not automatically malpractice. The law asks whether a reasonably careful provider in the same situation would have acted differently. That is the standard of care. Attorneys often retain qualified physicians to review the chart and testify about what a competent emergency physician would have done. If PE was a reasonable possibility and the ER did not appropriately evaluate or rule it out, that failure may support a claim. You still must prove the failure caused your harm.
Pulmonary Embolism Misdiagnosis as Professional Negligence Under California Law
California generally treats a missed PE claim as "professional negligence," which triggers MICRA’s special rules. Under Cal. Civ. Code § 3333.2 and § 3333.1, professional negligence means a negligent act or omission by a health care provider in rendering professional services, within the scope of the provider’s license, that proximately causes personal injury or wrongful death. Failing to order imaging or to recognize PE symptoms may be the kind of "omission to act" this definition covers.
To succeed, a plaintiff generally must prove four elements: duty, breach of the standard of care, causation, and damages. Causation is often the hardest fight. The defense may argue the patient would have suffered the same outcome even with timely diagnosis, so medical testimony about how early treatment would probably have changed the result is critical.
💡 Pro Tip: Write down a timeline of every symptom, ER visit, discharge instruction, and conversation as soon as you can. These details can help reviewing physicians identify when PE should have been suspected.
Who Can Be Held Responsible for Emergency Room Negligence
MICRA divides defendants into groups, and this split can significantly affect a missed PE case. Under Cal. Civ. Code § 3333.2, a "health care provider" includes an individual, such as an ER physician, along with that person’s employer or professional corporation. A "health care institution" is a licensed health facility such as a hospital, and includes those whose liability is vicarious, such as through respondeat superior, actual agency, or ostensible agency.
Why ER Contractor Doctors Matter
Many San Bernardino ER physicians work for staffing groups under contract rather than as hospital employees. That arrangement does not necessarily shield the hospital. Under ostensible agency principles, a hospital may still face liability unless the patient knew or should have known that the ER doctor was not a hospital agent. Consent-form disclaimers do not always defeat the claim.
Multiple Facilities and Unaffiliated Defendants
When a patient is mishandled at more than one facility, an additional damages cap may come into play. A provider or institution is unaffiliated if it is not employed by, under contract with, an owner of, in a joint venture with, or otherwise in the same health system as the other defendant. No more than three caps can apply in a single case.
MICRA Damages Caps in San Bernardino ER Malpractice Cases
MICRA limits noneconomic damages, such as pain, suffering, and loss of companionship, but it does not cap economic losses like medical bills and lost earning capacity. The caps differ for injury and wrongful death claims, as set out in the California Civil Code damages provisions. The amounts below are the 2023 baseline figures. The caps rise each January 1, by $40,000 for injury and $50,000 for death, until they reach $750,000 and $1,000,000. After that, they adjust 2% a year. For 2026, the caps are $470,000 for injury and $650,000 for wrongful death.
| Category | Injury (No Death) Cal. Civ. Code § 3333.2(b) | Wrongful Death Cal. Civ. Code § 3333.2(c) |
|---|---|---|
| All health care providers combined | $350,000 | $500,000 |
| All health care institutions combined | $350,000 | $500,000 |
| Unaffiliated providers/institutions (separate negligence at an unaffiliated facility or during transport) | $350,000 | $500,000 |
These caps make case severity extremely important. In a wrongful death case, each cap applies to the case as a whole, no matter how many family members bring the claim. When a missed PE causes chronic pulmonary hypertension, anoxic brain injury, or death, economic damages for lifelong care, lost income, and lost financial support often make up the largest part of the claim.
How Collateral Source Evidence Works
Under Cal. Civ. Code § 3333.1, the defense may choose to tell the jury about benefits you received from health insurance, disability insurance, or Social Security. If it does, you may show what you paid for that coverage.
Filing Deadlines for a Missed Pulmonary Embolism Claim
Deadlines can end a strong case before it starts, so acting quickly is essential. For private providers, Cal. Code Civ. Proc. § 340.5 generally requires filing within one year after you discover, or reasonably should have discovered, the injury, or within three years after the injury, whichever comes first. The three-year limit is extended only in narrow situations, such as fraud, intentional concealment, or a foreign body left in the patient. Before suing, you generally must serve a 90-day notice of intent under Cal. Code Civ. Proc. § 364.
Special Rules When the ER Is Publicly Operated
If a public entity runs the ER, such as a county medical center, a separate government claim deadline generally applies before any lawsuit. Under Cal. Gov. Code § 911.2, a claim for personal injury or death generally must be presented to the entity within six months after the cause of action accrues. If the claim is rejected in writing, the lawsuit generally must be filed within six months after notice of rejection is given (Cal. Gov. Code § 945.6).
If you miss the six-month deadline, Cal. Gov. Code § 911.4 generally allows a written application for permission to file a late claim. The application must be made within a reasonable time, no later than one year after accrual, and must explain the delay. Relief is not guaranteed.
💡 Pro Tip: Request complete ER records, including triage notes, vital signs, and any imaging orders, as early as possible.
Building a Strong Case After a Life-Altering Misdiagnosis
A successful pulmonary embolism misdiagnosis claim generally depends on evidence, medical review, and a clear link between the error and the harm. Diagnostic failures in the ER often share patterns, as we explain in our discussion of ER sepsis misdiagnosis claims. Strong cases typically involve documented symptoms that pointed toward PE, a failure to test, and a serious outcome such as permanent organ damage or death.
Working with an experienced pulmonary embolism misdiagnosis lawyer can help you secure records, retain qualified physician reviewers, and calculate lifetime losses. Insurers frequently dispute causation and minimize future care needs.
Frequently Asked Questions
1. Can I sue if the ER sent me home and I later survived a PE?
You may have a claim if the delay caused significant harm, such as chronic lung or heart damage or added pain, treatment, and expense. Claims generally require a compensable injury caused by the delay, not just the misdiagnosis itself.
2. Can my family file a claim if a loved one died from a missed PE?
Eligible family members, such as a spouse, children, or other heirs under Cal. Code Civ. Proc. § 377.60, may pursue a wrongful death claim. Noneconomic damages caps are higher in death cases: $500,000 per defendant category at the 2023 baseline and $650,000 in 2026. Economic losses are not capped.
3. Is the hospital responsible if the ER doctor was a contractor?
Possibly. Under ostensible agency principles, a hospital may be liable unless the patient knew or should have known the doctor was not its agent.
4. Do I need a medical professional to support my case?
In most malpractice cases, yes. Qualified physician testimony is generally needed to establish the standard of care, the breach, and causation.
5. What if the ER was a county hospital?
You generally must present a government claim within six months under Cal. Gov. Code § 911.2 before you can sue. Missing that deadline can seriously jeopardize recovery, although a late-claim application may be possible within one year.
Protecting Your Family’s Future After a Missed PE
A missed pulmonary embolism can leave lasting damage or end a life, and California law may allow injured patients and grieving families to seek accountability. These claims involve MICRA caps, multiple potential defendants, and strict deadlines.
When emergency room negligence has upended your life, every day matters. Kampf, Schiavone & Associates stands ready to review what happened and explain your options. Call 909-885-1522 or schedule your consultation today to take the first step toward recovery.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.