Failure to Diagnose Heart Attack, Stroke & Sepsis in New York

Three conditions kill and disable more people through missed diagnosis than any others, and all three have a defined workup that is supposed to happen before a patient is discharged.

When it does not happen, the chart usually says so.

A missed diagnosis becomes malpractice when the presentation called for a workup that a reasonably competent practitioner would have ordered, and the failure to order it changed the outcome.

New York is a strong place to bring these claims. There is no cap on damages, and for sepsis this state literally wrote the protocol the hospital was supposed to follow.

Call (888) 713-6653 for a free, confidential review of the emergency department record. You Win or It's Free.

The "Big Three" Behind Most Serious Diagnostic Harm

Diagnostic error is not a rare event at the edges of medicine. A 2023 study in BMJ Quality & Safety estimated that roughly 795,000 Americans die or are permanently disabled each year as a result of it, and that three categories, vascular events, infections, and cancers, account for about 75% of the serious harm.^[1]

Stroke, sepsis, pneumonia, venous thromboembolism, and lung cancer sit at the top of that list. Four of the five are conditions where minutes and hours change the outcome.

That is why the emergency department is where most of these claims begin. It is the part of the system built for exactly this problem, and the part under the most pressure to move people through.

In most malpractice cases the question is what was done. A stroke, a heart attack, and sepsis are medical emergencies measured in minutes and hours. A delay in diagnosis or treatment can be the difference between recovery and permanent injury, or between life and death. Once that window closes, it's often treatment that arrives too late.

Missed Heart Attack: The Presentations That Get Sent Home

The textbook heart attack, crushing chest pain radiating down the left arm, is rarely the one that gets missed. The ones that get missed look like something else.

Women, older adults, and people with diabetes present atypically at higher rates: shortness of breath without chest pain, nausea and vomiting, jaw or upper back pain, unexplained fatigue, or a vague sense of impending doom. Those presentations are well documented in the cardiology literature, which is precisely why failing to consider them is a departure rather than bad luck.

Where these cases are usually built:

• A single troponin drawn on arrival and no repeat. Cardiac markers rise over hours, so one early normal value does not rule out an infarction.
• An initial EKG read as unremarkable and never repeated as symptoms continued or changed.
• Risk factors documented in the chart and not weighted in the disposition decision.
• Discharge with a diagnosis of anxiety, reflux, or a musculoskeletal strain, without documenting why a cardiac cause was excluded.
• A patient who returned within days with the same complaint and was worked up differently the second time, which is often the clearest evidence of what should have happened the first.

Our national page on heart attack misdiagnosis covers the clinical picture in more depth.

Missed Stroke: Dizziness, the Posterior Circulation, and the Treatment Window

Stroke is among the most frequently missed serious diagnoses in emergency medicine, and the pattern is consistent. Anterior circulation strokes with facial droop and one-sided weakness get recognized. Posterior circulation strokes, which present with dizziness, vertigo, imbalance, nausea, or visual disturbance, get diagnosed as vertigo, migraine, or an inner ear problem and sent home.

Younger patients are misdiagnosed at higher rates, because stroke is not what anyone expects in a 38-year-old.

What tends to matter in the record:

• Whether the time of symptom onset was documented at all, since every treatment decision downstream depends on it.
• Whether a proper neurological examination was performed and recorded, including gait, which is frequently skipped and frequently decisive in posterior stroke.
• Whether imaging was ordered, and which imaging. A non-contrast CT is poor at detecting early posterior ischemia, and a normal CT is not a stroke rule-out.
• Whether the patient was evaluated for thrombolysis or thrombectomy within the windows those treatments require, or whether the delay closed the window.
• Whether a stroke alert was activated, and if not, what the documented reason was.

The causation fight in a stroke case is almost always about the window. Our page on stroke misdiagnosis claims explains how those arguments run.

Missed Sepsis: New York Is the State That Wrote the Protocol

Every sepsis malpractice case in the country runs into the same defense argument: the presentation was nonspecific, and infection is hard to distinguish from a virus early on.

In New York that argument has to contend with a regulation.

That changes the shape of the case. Instead of an abstract argument about what a reasonable practitioner would do, the question becomes concrete: what did this hospital's own protocol require, was the patient screened, were the vital signs and lab values that should have triggered it charted, and how long did it take for antibiotics and fluids to be given?

The recurring fact patterns are consistent. Abnormal vitals recorded and not escalated. A lactate ordered late or not at all. Antibiotics delayed for hours after the criteria were met. A patient discharged with a viral diagnosis whose vitals at discharge were worse than on arrival. See our national page on sepsis malpractice claims for the medicine behind it.

The Other Two That Kill Fast: Pulmonary Embolism and Aortic Dissection

Both are vascular emergencies, both present in ways that resemble far more common conditions, and both are frequently discharged.

• Pulmonary embolism presents as shortness of breath, chest pain, or a rapid heart rate, and is commonly attributed to anxiety, asthma, or a chest infection. Recent surgery, immobility, a long flight, cancer, pregnancy, and hormonal contraception are documented risk factors, and the failure to ask about them is where these cases start. Our page on pulmonary embolism misdiagnosis goes further.
• Aortic dissection is often described as tearing or ripping pain that radiates to the back, and it is regularly mistaken for a heart attack, a kidney stone, or acid reflux. The treatment for some of those diagnoses can make a dissection worse, which is what makes the error so unforgiving. See aortic dissection misdiagnosis claims.

What links every condition on this page is that the diagnosis is available to anyone who considers it. The failure is almost never a failure of capability. It is a failure to think of it and to document why it was ruled out.

What the Chart Has to Show: The Differential and the Workup That Was Skipped

Emergency medicine works by differential diagnosis: list the dangerous conditions the presentation could represent, then rule out the ones that can kill before discharging the patient.

A diagnostic failure case is built by comparing the differential that should have been considered against what the record shows was actually done.

• The triage note and the initial vital signs, which frequently contain the abnormality everything else ignored.
• The physician's documented differential, or its absence.
• Every test ordered and every test not ordered, with the timestamps.
• The trend in vital signs across the visit, including the last set taken before discharge.
• Nursing notes, which often record deterioration the physician's note does not.
• The discharge instructions, and whether the patient was told what warning signs should bring them back.
• The return visit, where one happened, with its own full set of timestamps.

We always ask whether there was a second visit. If there was, the hospital has already documented the correct workup in its own records, and the only question left is why it did not happen the first time. That second visit shows exactly what the first visit should have looked like.

Diagnostic error in emergency departments has been studied systematically, and the findings support what these records tend to show: the misses cluster in specific conditions and specific presentations rather than being randomly distributed.^[3]

Why "They Were Going to Do Badly Anyway" Is Not the End of the Case

The standard defense in a diagnostic failure case is that the outcome was inevitable. The stroke was already complete. The infarct was already extensive. The sepsis had already progressed.

New York gives that argument less room than most states. Three of the four Appellate Departments allow a plaintiff to prove causation by showing a substantial possibility that the delay deprived the patient of a better outcome. That chance does not have to be better than even, though it must be more than slight, and the Court of Appeals has not squarely settled the question.

In practice it means a case is not defeated merely because the defense expert says the patient probably would have suffered some harm regardless. The question is whether earlier recognition would have given them a real chance at less of it.

What a Missed Diagnosis Case Is Worth When New York Caps Nothing

New York places no statutory limit on medical malpractice damages, which matters most in exactly this category, where the harm tends to be permanent. Our page on what New York does and does not cap covers the one narrow 2026 exception and why it does not reach a malpractice claim.

• Past and future medical care, including rehabilitation, home nursing, and the treatment a timely diagnosis would have avoided.
• Lost earnings and lost earning capacity, where a stroke or cardiac injury ends a working life.
• Pain and suffering, past and future, uncapped in New York and frequently the largest single component.
• The cost of future care built from a life-care plan where the disability is permanent.
• Loss of consortium for a spouse.
• Wrongful death and survival claims where the patient did not survive, which run together and are valued separately. The survival claim is the one that reaches what the patient endured before death.

Large awards remain subject to appellate review under CPLR § 5501(c), which measures them against comparable New York verdicts rather than a statutory ceiling, and to the periodic-payment rules that apply to future damages.^[4] Every figure is a range or a past result, not a promise.

None of it is reachable unless the claim is started inside New York's malpractice window, which runs two years and six months from the act or from the end of continuous treatment, and far shorter against a public hospital. The exceptions are on our page about the New York medical malpractice deadline.

Who Has to Read the Emergency Department Record

A diagnostic failure case is won or lost in the emergency department record, and it takes an emergency physician, sometimes a cardiologist or neurologist, and often an infectious disease specialist to read it properly. That is a heavier expert requirement than most New York injury cases carry, and it is why these claims get screened hard before they get filed.

• More than 40,000 cases handled and over $100 million recovered, with a 98% recovery rate.
• An attorney admitted in New York. Don Worley has more than twenty years in personal injury practice and is admitted to the New York bar, with the firm's office at 305 Broadway in Lower Manhattan.
• Recognized by Best Lawyers in America, Super Lawyers, the Million Dollar Advocates Forum, and the National Trial Lawyers.
• We fund the expert review. The specialist opinions these cases require are paid for by the firm and repaid only from a recovery.
• Selective acceptance. We take the case when the record supports it and we are prepared to try it.
• You Win or It's Free. No fee unless we recover for you.