Visitor Question

Does my friend have a malpractice claim against the hospital ER for her child’s death?

Submitted By: Anonymous (Mankato, Minnesota)

My friend’s child was complaining about headaches and neck pain. She took him to the ER and she was told it was neck strain and that she should massage it and give him pain killers. He missed two days school and was sick through the weekend.

She took him back to the ER during the weekend and again sent home with the same advice. Come next school week, he was fine and went to school for the whole week. At the end of the school week, on Friday, the child was found on the floor seizing.

The ambulance was called and he was transferred to a hospital about 180 miles away because a chopper wasn’t available. He was pronounced dead at arrival. He died of a hemorrhagic stroke.

Can my friend sue the hospital for misdiagnosing her child in the emergency room? Thank you for answering.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Anonymous,

Thank you for your question and we are sorry to hear about your friend’s situation.

If the doctors who examined your friend’s son were negligent in failing to identify, or attempt to identify, a serious medical condition, then she may be able to bring a medical malpractice lawsuit. Please understand, however, that medical malpractice lawsuits are complicated and difficult.

Minnesota, like other states, requires that a doctor or other healthcare provider must have breached the standard of care in order to be held liable for medical negligence. What that means is that the plaintiff (your friend) must prove the following:

  • The standard of care in the medical community for which the defendant’s (doctor’s) treatment should be measured
  • That the defendant deviated from that standard (in other words, was negligent)
  • That the deviation (negligence) proximately caused the injury

In plain terms, your friend would have to prove that her son’s death was caused by the failure of the emergency department physicians to diagnose his impending hemorrhagic stroke.

An expert witness will have to testify that based on the child’s symptoms, complaints and presentation, the emergency room physicians should have taken additional diagnostic measures that, more likely than not, would have discovered his condition and have allowed them to treat and prevent the fatal result.

In order to even bring a medical malpractice lawsuit in Minnesota, the plaintiff must first obtain an expert witness who will submit an affidavit of merit stating that:

“The facts of the case have been reviewed by the plaintiff’s attorney with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff . . . .”

There also are legal standards regarding what type of medical expert is required in particular cases.

Your question asks if your friend could file a lawsuit against the hospital, and that will depend upon whether the hospital employed the emergency room doctors who examined her son.

Some hospitals contract with outside physician groups to staff their emergency rooms and, as such, do not employ the physicians who provide the emergency department care. Such an independent contractor arrangement can shield the hospital from liability.

If the emergency room doctors don’t work directly for the hospital, your friend would need to sue the physician group that staffed the emergency department in question.

Finally, because your friend’s son passed away, any medical negligence action would have to be brought under the Minnesota Wrongful Death Statute. The wrongful death statute establishes a claim for certain surviving family members related to the loss they have suffered due to the death of their loved one caused by someone’s negligence.

Because of the complexity of the law and the process that must be followed, it is essentially impossible for someone to bring a medical negligence-based wrongful death claim on their own. An experienced personal injury attorney can provide your friend with valuable information about any potential claims she may have in this situation.

Learn more here: ER Malpractice Lawsuits

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,


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