A recent ED malpractice case involved a patient who presented with a severe headache. “He was under-triaged and experienced an unacceptably long wait,” says Laura Pimentel, MD, vice president and chief medical officer at Maryland Emergency Medicine Network in Baltimore.

When the patient finally was evaluated, the ED diagnosed an intracranial hemorrhage with a mid-line shift on CT scan. Despite receiving proper treatment and a transfer for neuro-critical care management, the patient died. A lawsuit was filed against the EP and the hospital. The plaintiff alleged that ED staff failed to follow policies for reassessing patients in the waiting room.

The EP was dropped because he argued credibly that triage is the responsibility of the hospital nursing staff. “Once the patient was brought to an ED bed, his care was timely and appropriate,” Pimentel explains. “The hospital settled with the plaintiff.”

EPs can expect wait times to become an issue in any litigation in which an ED patient was diagnosed with a time-sensitive disease process. “Cases in which significant delays in care exist are difficult to defend,” Pimentel notes.

Acute stroke, ST-elevation myocardial infarction, and sepsis are three conditions for which there is good evidence that timeliness in diagnosis and treatment correlate with better outcomes. “Triage protocols should be in place in all EDs to screen for these disease processes,” Pimentel offers.

ED records contain time stamps for key events such as arrival, triage, initial physician or provider evaluation, room placement, and orders. This makes it easy for the plaintiff attorney to prove exactly how long a patient waited.

“Now that most EDs use [electronic medical records], it is very easy to obtain and follow the timeline,” Pimentel says. Here are some ways plaintiffs can try to prove that the wait time exceeded the standard of care:

  • The attorney can argue that the patient experienced an excessive wait based on his or her triage level.

For example, one could argue that a patient triaged as an Emergency Severity Index Level 2, who waited an hour to be seen by an EP, did not receive an acceptable standard of care.

  • The attorney can argue that the patient was improperly triaged to a less urgent Emergency Severity Index level than the vital signs and chief complaint warranted.
  • The attorney can argue that the patient presented in stable condition, but deteriorated while in the ED waiting room.

Without routine reassessment, a patient’s worsening condition can go unrecognized. “Plaintiff attorneys may use this to claim that there was a delay in diagnosis and treatment,” Pimentel says. Cases alleging that patients waited too long often become “battles of the experts.”

Often, delays are sources of liability for hospitals rather than EPs. This is because hospitals are responsible for their triage policies, ancillary services, and patient flow.

“The EP may be dropped because the delays occurred before the patient was ever seen by the physician,” Pimentel adds.


  • Laura Pimentel, MD, Vice President/Chief Medical Officer, Maryland Emergency Medicine Network, Baltimore. Phone: (410) 328-8025. Email: lpimentel@umem.org.