Understanding Concussion Misdiagnosis in Emergency Rooms
When you or a loved one suffers a head injury, the emergency room should be a place of accurate diagnosis and proper treatment. Unfortunately, concussions are among the most frequently misdiagnosed injuries in emergency departments across New York State. Research shows that only 5.4% of pediatric concussion patients receive a correct diagnosis in the ER, and approximately 50% of adults with concussions are never evaluated by a healthcare provider at all.
If an emergency room doctor failed to diagnose your concussion, and that failure led to worsening symptoms, prolonged recovery, or additional brain injury, you may have grounds for a medical malpractice claim. This guide explains why concussion misdiagnosis happens so frequently in ERs, what your legal rights are under New York law, and how to protect yourself and your family.
Why Emergency Rooms Frequently Miss Concussions
Emergency departments are designed to identify and treat life-threatening conditions quickly. While this focus saves lives in critical situations, it creates a systematic blind spot for injuries like concussions that may not appear immediately dangerous but can have serious long-term consequences.
The Imaging Limitation Problem
One of the primary reasons ERs miss concussions is the fundamental limitation of standard diagnostic imaging. CT scans and MRIs are excellent tools for detecting structural brain damage—skull fractures, bleeding, and blood clots—but they cannot diagnose concussions.
Here’s why: Concussions are microscopic cellular injuries affecting brain cells and axons (nerve fibers). These cellular-level changes don’t show up on conventional imaging. Research shows that less than 10% of people with mild traumatic brain injuries have abnormal CT or MRI results, and the CT scan is typically normal in concussion patients.
This creates a dangerous scenario where ER physicians, seeing a “normal” CT scan, may falsely reassure patients that they don’t have a brain injury and send them home without proper concussion protocols or follow-up care.
The High-Pressure ER Environment
Emergency departments operate under intense time pressure, often with overcrowding and limited resources. Medical professionals must prioritize patients with immediately life-threatening conditions. In this environment, concussions—which are not typically life-threatening—may receive less attention.
Common ER factors that contribute to misdiagnosis include:
- Incomplete patient histories: ER staff may not gather detailed information about the mechanism of injury or pre-injury cognitive function
- Adrenaline masking symptoms: The body’s stress response after trauma can temporarily hide concussion symptoms
- Delayed symptom onset: Concussion symptoms can develop 24-48 hours after injury, well after the ER visit
- Focus on visible injuries: ER teams are trained to prioritize obvious trauma like broken bones and bleeding
- Limited concussion expertise: Not all ER physicians have specialized training in concussion diagnosis and management
Statistics on Missed Diagnoses
The scope of the problem is substantial:
Pediatric Misdiagnosis Rate
94.6%
Only 5.4% of pediatric concussions were correctly diagnosed in emergency departments, according to a retrospective study published in Pediatric Emergency Care. The study concluded that “the high rate of concussion misdiagnosis puts into question the usability of current concussion guidelines.”
Adults Never Evaluated
50.4%
CDC research found that among adults who reported a lifetime concussion, more than half were never evaluated by a doctor or nurse for their most recent concussion. The rate was even higher among males at 56.8%.
Undiagnosed Athletes
33%
Nearly one-third of athletes have sustained a blow to the head resulting in concussion signs and symptoms that was never diagnosed as a concussion, according to research published in the Clinical Journal of Sport Medicine.
Level I Trauma Centers
56%
Even in the best Level I trauma hospitals in the United States, 56% of mild traumatic brain injuries are not diagnosed—meaning brain injuries are missed more often than they are correctly identified.
Sources: Pediatric Emergency Care (2022), CDC TBI Data, Clinical Journal of Sport Medicine
When ER Misdiagnosis Becomes Medical Malpractice
Not every missed concussion diagnosis constitutes medical malpractice. To have a valid claim under New York law, you must prove four essential elements known as the “Four D’s”:
1. Duty of Care
The ER physician owed you a professional duty of care. This is established automatically when you present to the emergency room and are accepted as a patient.
2. Deviation (Breach)
The ER doctor or medical staff deviated from the accepted standard of care. This might include failing to perform a proper neurological exam, ignoring reported symptoms, or discharging you without appropriate concussion protocols.
3. Direct Causation
The misdiagnosis or inadequate care directly caused or worsened your injury. For example, you were sent home without activity restrictions and suffered second impact syndrome, or cognitive symptoms worsened due to lack of proper treatment.
4. Damages
You suffered measurable harm as a result, such as prolonged symptoms, lost wages, additional medical expenses, or permanent cognitive impairment.
Examples of ER Negligence in Concussion Cases
Medical malpractice in concussion misdiagnosis can take many forms:
| Type of Negligence | Example Scenario | Potential Consequence |
|---|---|---|
| Failure to Perform Neurological Exam | ER doctor orders CT scan but doesn’t check pupil response, balance, memory, or cognitive function | Concussion remains undiagnosed; patient returns to work/sports too soon |
| Relying Solely on Imaging | Physician sees normal CT scan and concludes “no brain injury” without clinical assessment | Patient develops post-concussion syndrome without proper treatment |
| Inadequate Discharge Instructions | No concussion education provided; patient not told to avoid physical/cognitive exertion | Delayed recovery, second impact syndrome, worsening symptoms |
| Failure to Recommend Follow-Up | Patient discharged without referral to concussion specialist or neurologist | Prolonged post-concussion syndrome, development of chronic symptoms |
| Dismissing Patient Symptoms | ER staff attribute headache, confusion, or nausea to stress or alcohol rather than head injury | Serious brain injury goes untreated; symptoms escalate |
| Premature Discharge | Patient with confusion or altered mental status sent home without observation period | Intracranial bleeding develops after discharge; delayed diagnosis causes permanent damage |
Second Impact Syndrome: The Devastating Risk
One of the most serious consequences of concussion misdiagnosis is second impact syndrome—a rare but often fatal condition that occurs when someone sustains a second concussion before the first has fully healed. The brain swells rapidly and catastrophically, leading to severe disability or death.
When an ER fails to diagnose a concussion, patients typically don’t know they need to avoid activities that could result in another head impact. Athletes return to sports, workers return to physical jobs, and children return to rough play—all putting themselves at risk for this preventable tragedy.
Your Legal Rights Under New York Law
Statute of Limitations for Medical Malpractice
In New York, you generally have 2.5 years (30 months) from the date of the malpractice to file a lawsuit under CPLR § 214. However, brain injury cases often qualify for important exceptions:
Other important exceptions include:
- Continuous Treatment Doctrine: If you remained under the care of the same doctor or hospital for ongoing treatment of the head injury, the clock may not start until treatment ends
- Discovery Rule: In rare cases where the injury wasn’t immediately discoverable, you may have up to 7 years from the date of treatment
- Minors: For children, the statute of limitations may be tolled until they turn 18, but cannot exceed 10 years total
- Government Hospitals: Claims against state or municipal hospitals require filing a notice of claim within 90 days—a much shorter deadline
Source: New York Medical Malpractice Statute of Limitations
Damages You May Recover
New York does not cap medical malpractice damages, which means there is no legal limit on what you can recover. Compensation in concussion misdiagnosis cases may include:
- Past and future medical expenses: Treatment costs for ongoing concussion care, neuropsychological testing, vestibular therapy, vision therapy, and long-term rehabilitation
- Lost wages and earning capacity: Income lost during recovery and reduced future earning potential due to cognitive impairment
- Pain and suffering: Compensation for chronic headaches, cognitive difficulties, emotional distress, and reduced quality of life
- Rehabilitation costs: Physical therapy, occupational therapy, cognitive rehabilitation, and assistive devices
- Loss of consortium: Impact on your relationship with your spouse
Notable case results in New York brain injury malpractice cases include settlements and verdicts ranging from hundreds of thousands to millions of dollars. One reported case involved a $4,000,000 recovery for a patient with an undiagnosed subdural hematoma after emergency room treatment, and a $2,000,000 pre-trial settlement for concussion and post-concussion syndrome from a vehicle accident.
Steps to Take If Your Concussion Was Misdiagnosed
1. Seek Immediate Medical Attention
If you’re experiencing concussion symptoms that were missed during an ER visit, see a concussion specialist immediately. Look for:
- Neurologists with concussion expertise
- Sports medicine physicians
- Neurosurgeons
- Specialized concussion clinics
Document all symptoms, even if they seem minor: headaches, dizziness, sensitivity to light or noise, difficulty concentrating, memory problems, mood changes, sleep disturbances, or balance issues.
2. Obtain Your Medical Records
Request complete copies of your emergency room records, including:
- Triage notes
- Physician examination notes
- Nursing assessments
- All diagnostic test results (CT scans, X-rays, blood work)
- Discharge instructions
- Follow-up recommendations (or lack thereof)
These records are critical evidence in establishing what the ER knew, what tests were performed, and what instructions you received.
3. Keep a Symptom Journal
Track your symptoms daily, noting:
- Type and severity of symptoms (use a 1-10 scale)
- Activities that worsen symptoms
- Medications and their effectiveness
- Impact on work, school, and daily activities
- Cognitive difficulties (concentration, memory, reading)
This documentation becomes powerful evidence of the injury’s impact on your life.
4. Preserve Evidence of the Original Injury
If possible, document:
- Photos of any visible injuries (cuts, bruises, swelling)
- Police reports (for motor vehicle accidents)
- Witness statements about the incident
- Witness observations of your symptoms immediately after injury
- Text messages or emails describing how you felt
5. Consult a New York Medical Malpractice Attorney
Brain injury cases require specialized legal knowledge. Look for attorneys with experience in both brain injury medical malpractice and emergency room negligence claims.
Most medical malpractice attorneys work on contingency, meaning you pay nothing unless they win your case. During your free consultation, ask about:
- Their experience with concussion misdiagnosis cases
- Access to medical experts who can review your case
- The typical timeline for these cases
- What damages you might reasonably expect to recover
How Concussion Malpractice Cases Are Proven
The Role of Medical Expert Testimony
New York medical malpractice law requires expert medical testimony to establish what the standard of care should have been and how it was violated. In concussion cases, your attorney will typically work with:
- Emergency medicine physicians: To testify about ER protocols and whether proper procedures were followed
- Neurologists or neurosurgeons: To explain the nature of your injury and its long-term effects
- Neuropsychologists: To document cognitive impairments through standardized testing
- Vocational experts: To assess impact on your ability to work
- Life care planners: To calculate future medical and care needs
What the Standard of Care Requires
Expert witnesses will evaluate whether the ER physician met the standard of care by considering whether they should have:
- Obtained a detailed history of the injury mechanism
- Performed a thorough neurological examination
- Assessed for concussion symptoms using standardized tools
- Understood that normal imaging doesn’t rule out concussion
- Provided proper discharge instructions and activity restrictions
- Recommended appropriate follow-up care
- Educated you about warning signs requiring immediate return to ER
Defending Against Common Arguments
Defense attorneys in these cases often argue:
- “The CT scan was normal”: Your experts will counter that CT scans cannot diagnose concussions and clinical assessment is required
- “You didn’t report all symptoms”: Medical records and expert testimony can show that concussion symptoms often develop gradually
- “Your symptoms are from something else”: Neurologists can differentiate concussion from other conditions
- “You had a pre-existing condition”: New York follows the “eggshell plaintiff” rule—defendants take victims as they find them
Preventing ER Concussion Misdiagnosis: Advocacy Tips
While you shouldn’t need to be your own doctor, understanding how to advocate for proper concussion care in the ER can make a difference:
Key phrases to use in the ER:
- “I understand CT scans don’t show concussions—can you do a clinical assessment?”
- “What symptoms should I watch for that would require me to return?”
- “Can you refer me to a concussion specialist for follow-up?”
- “What activity restrictions should I follow?”
- “Should I avoid screens, reading, or physical activity?”
Before leaving the ER, make sure you have:
- Clear discharge instructions in writing
- A list of warning signs that require immediate return to ER
- Recommendations for follow-up care (with specific types of providers)
- Activity restrictions (work, school, sports, driving)
- Timeline for when symptoms should improve
Why Concussion Misdiagnosis Matters Long-Term
The consequences of a missed concussion diagnosis extend far beyond the initial ER visit. Without proper diagnosis and management:
- Post-concussion syndrome: Symptoms can persist for months or years instead of weeks
- Chronic traumatic encephalopathy (CTE): Risk increases with repeated undiagnosed concussions
- Depression and anxiety: Common complications of untreated concussions
- Cognitive decline: Memory, concentration, and executive function may not fully recover
- Sleep disorders: Insomnia and sleep disturbances become chronic
- Vestibular and vision problems: Dizziness and visual dysfunction may persist
- Increased risk of future brain injury: The brain remains vulnerable
Early diagnosis and proper concussion management significantly improve outcomes. When ERs fail in this responsibility, patients pay the price with prolonged suffering and diminished quality of life.
Frequently Asked Questions
Can I sue if the ER doctor said my CT scan was normal but I actually had a concussion?
Yes, you may have a valid medical malpractice claim. CT scans and MRIs cannot diagnose concussions—they only detect structural damage like bleeding or skull fractures. An ER physician has a duty to perform a clinical neurological examination and assess concussion symptoms, not rely solely on imaging. If the doctor’s failure to properly diagnose your concussion led to additional harm (such as prolonged symptoms, second impact syndrome, or delayed treatment), you should consult a New York medical malpractice attorney.
How long do I have to file a medical malpractice lawsuit for concussion misdiagnosis in New York?
Generally, you have 2.5 years (30 months) from the date of the malpractice to file a lawsuit under New York law (CPLR § 214). However, if your brain injury left you legally incapacitated or unable to manage your affairs, the statute of limitations may be tolled (paused) until your capacity is restored, up to a maximum of 10 years. Other exceptions include the continuous treatment doctrine and special rules for minors. Because these deadlines are strict and exceptions are complex, consult an attorney as soon as possible.
What if my concussion symptoms didn’t appear until days after the ER visit?
Delayed symptom onset is common with concussions and doesn’t prevent you from having a malpractice claim. In fact, one of the ER’s responsibilities is to warn you about delayed symptoms and provide clear instructions to return if symptoms develop. Research shows concussion symptoms can appear 24-48 hours after injury. If the ER failed to educate you about this possibility and failed to provide proper discharge instructions, their negligence may have contributed to your worsened condition or delayed treatment.
Do I need to prove the ER doctor was “wrong” or do I need to prove negligence?
You must prove negligence, which is different from simply being wrong. Not every misdiagnosis is malpractice. To have a valid claim, you must show: (1) the ER doctor owed you a duty of care, (2) they deviated from the accepted standard of care (such as failing to perform a proper neurological exam), (3) this deviation directly caused or worsened your injury, and (4) you suffered measurable damages. This requires medical expert testimony. A qualified medical malpractice attorney can evaluate whether your case meets these requirements.
Can I sue if the ER discharged me too quickly after a head injury?
Potentially, yes. If you had signs of a serious head injury (confusion, altered mental status, repeated vomiting, severe headache) and were discharged without adequate observation or proper follow-up instructions, this may constitute negligent care. Emergency departments have a duty to monitor patients with head injuries for a reasonable period to ensure symptoms don’t worsen and to rule out serious complications like intracranial bleeding. If premature discharge led to a delayed diagnosis of a worsening condition, you may have grounds for a claim.
What damages can I recover in a concussion misdiagnosis lawsuit?
New York has no cap on medical malpractice damages. You may recover compensation for past and future medical expenses (including ongoing concussion treatment, therapy, and rehabilitation), lost wages, reduced earning capacity, pain and suffering, and loss of quality of life. If the misdiagnosis led to prolonged post-concussion syndrome or permanent cognitive impairment, damages can be substantial. Notable New York brain injury malpractice cases have resulted in settlements and verdicts ranging from hundreds of thousands to millions of dollars, depending on the severity of the injury and its long-term impact.
Will my case be affected if I didn’t mention all my symptoms to the ER doctor?
Not necessarily. Concussion symptoms often develop gradually, and patients may not recognize or report all symptoms immediately—especially if they’re confused or disoriented from the head injury itself. Part of the ER’s duty is to actively assess for concussion symptoms through examination and questioning, not simply rely on what patients spontaneously report. Additionally, medical experts can testify that certain symptoms (like cognitive difficulties) may impair a patient’s ability to accurately communicate their condition. An experienced attorney can help establish that the ER should have identified the concussion despite incomplete initial reporting.
What is second impact syndrome and can I sue if the ER’s misdiagnosis led to it?
Second impact syndrome is a rare but catastrophic condition that occurs when someone sustains a second concussion before the first has fully healed. The brain swells rapidly, often leading to severe disability or death. If an ER failed to diagnose your initial concussion, you wouldn’t have known to avoid activities that could cause another head impact. If you then suffered second impact syndrome because you returned to sports, work, or other activities without knowing you had a concussion, the ER’s failure to diagnose and warn you may constitute medical malpractice. These cases often result in significant damages due to the severity of the resulting injuries.
Should I get a second medical opinion if I think the ER missed my concussion?
Absolutely. If you’re experiencing symptoms like headaches, dizziness, difficulty concentrating, memory problems, sensitivity to light or noise, mood changes, or sleep disturbances after a head injury—even if the ER said you were fine—see a concussion specialist immediately. Neurologists, sports medicine physicians, and specialized concussion clinics can properly diagnose and treat concussions that ERs missed. Getting proper treatment not only improves your health outcomes but also creates medical documentation that strengthens a potential malpractice claim. Don’t wait for symptoms to worsen.
Connect with a Qualified New York Medical Malpractice Attorney
If you or a loved one suffered harm due to concussion misdiagnosis in an emergency room, you don’t have to navigate this complex legal process alone. Our service connects brain injury victims with experienced New York medical malpractice attorneys who understand the medical and legal complexities of these cases.
What to expect when you connect with an attorney:
- Free case evaluation: An experienced attorney will review the facts of your case at no charge
- No upfront costs: Medical malpractice attorneys work on contingency—you pay nothing unless they recover compensation for you
- Access to medical experts: Your attorney will work with ER physicians, neurologists, and other specialists to build your case
- Comprehensive investigation: The firm will obtain all medical records, retain experts, and thoroughly investigate what went wrong
- Personalized attention: You’ll work directly with attorneys who have experience handling brain injury cases in New York
Don’t let the statute of limitations run out while you’re still suffering from symptoms that should have been diagnosed. Take action today to protect your legal rights and secure the compensation you need for your recovery.
Ready to discuss your case? Connect with a qualified New York medical malpractice attorney today. Your consultation is free, and there’s no obligation.
