EPs have been held liable for adverse outcomes resulting from the patient’s undertriage, based on the “captain of the ship” legal theory.

  • The minute an ED patient checks in, a legal duty is established.
  • EPs can be held liable — even if they never personally saw the patient.
  • The EP’s legal duty extends to patients in the waiting room.
  • The EP’s legal duty continues as long as the patient is in the ED.

An EP could be hundreds of feet away when a patient with a life-threatening condition is mistriaged. That doesn’t necessarily stop an affected patient from suing that EP for the resulting adverse outcome.

“Plaintiffs often will attempt to assert that the EP is the ‘captain of the ship’ who has responsibility to keep the ED efficient and ensure appropriate triage,” explains Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC.

Such claims can be defended successfully. Often, this hinges on the defense’s ability to find an expert willing to support the rationale for triage at the lower acuity level. “But it is common for a plaintiff’s expert to find another criticism of the EP, separate and apart from the issue surrounding triage,” Shuirman notes.

This creates the “perfect storm” for the EP defendant. The EP is criticized for some aspect of clinical decision-making, while ED nurses are criticized for undertriage. “The EP then has to defend her care in the context of a long wait time,” Shuirman explains.

The EP can argue that the amount of time to make a difference in the patient’s outcome was cut, through no fault of the EP. By the time the EP saw the patient who was mistriaged as low acuity, it might have been too late to intervene. However, that doesn’t mean the EP is off the hook.

“Any credible position by a plaintiff’s expert that a better outcome was still likely, if not for the EP’s clinical decision-making, will expose the EP to an adverse verdict,” Shuirman adds.

Stage Set Early

In claims involving long wait times and triage, plaintiff attorneys typically make these two allegations:

  • The ED patient waited too long to be seen because of undertriage;
  • The EP was unable to intervene in time to prevent a bad outcome because of the triage mistake.

“In the litigation context, wait times are of great concern,” Shuirman says. Most, if not all, jurors have experienced a long ED wait themselves, either as patients or with family members. This profoundly negative personal experience is likely to be top of mind when jurors are determining liability.

“When a patient or family member believes that undertriage has led to an underappreciation of the patient’s acuity, the stage has been set early for a claim to arise from a less-than-desirable outcome,” Shuirman says.

There is no question that long ED wait times send anxiety levels soaring. Patients get angry and defensive long before the EP enters the picture. “Thus, people are more likely to sue,” Shuirman notes.

Malpractice claims involving mistriage are settled often, even if the care provided is defensible.

“Juries can identify with plaintiffs who wait too long for acute conditions to be addressed,” Shuirman says.

Undertriage became a central issue in a recent malpractice case. The plaintiff was a young girl who appeared relatively stable at triage, but apparently deteriorated as the family waited hours to be seen.

“By the time our EP had seen the patient and thought she was clinically septic, the family was already hostile, having been ‘dismissed’ by a nurse and a nurse manager,” Shuirman recalls:

The plaintiffs in the malpractice lawsuit alleged that:

  • the EP should have intervened sooner;
  • the EP had a duty to know whether there were under-triaged patients in the waiting area;
  • if the patient had only been evaluated by an EP, she would have been treated faster.

People who are furious about mistriage aren’t likely to establish a good rapport with the EP, even when they’re finally seen. This fuels malpractice litigation against the EP, even if the best possible care is provided.

“Long wait times serve as an obstacle to building the relationship that can, oftentimes, cause a family to choose theories of liability against those with whom their relationship has been more unpleasant,” Shuirman explains.

No Patient/Physician Relationship

Undertriage can trigger malpractice litigation by delaying evaluation of time-dependent diagnoses, says Charles A. Eckerline, Jr., MD, FACEP, vice chairman in the department of emergency medicine at the University of Kentucky Medical Center in Lexington. These include sepsis, stroke, and myocardial infarction. Appropriate testing, monitoring, and treatment also are delayed.

“It can cause the physician to underestimate the seriousness of the patient’s condition,” Eckerline warns. “This can cause significant patient harm — and malpractice litigation.”

Even if the plaintiff’s case hinges on a triage mistake, the EP’s name probably is listed someplace on the chart — and, therefore, also on the subsequent lawsuit. This sometimes happens because a diagnostic test or blood work was ordered, but the EP’s shift ended before anybody actually brought the patient back.

“They will name everybody they can, and then the EP can hope to get dropped,” says Gillian Schmitz, MD, FACEP, an attending EP at Full Spectrum Emergency Room and San Antonio (TX) Military Medical Center.

This was the case in malpractice litigation involving a pregnant woman in a motor vehicle accident. The patient was mistakenly triaged as low acuity. The triage nurse indicated that the patient was restrained with a seat belt, but this wasn’t the case. The nurse also omitted the fact that the patient was pregnant. “That one fact made the difference in getting a lower triage level,” says Douglas N. Perlo, JD, a senior partner at Ficksman & Conley in Boston.

The defense team demonstrated that the EP, who was named in the lawsuit, never saw the patient. The plaintiff admitted this was true in her sworn testimony. The question became: Was the EP supposed to see the patient?

“The defense argued, successfully, that no doctor/patient relationship was established,” Perlo notes.

Duty Established

The fact that the EP owed a legal duty to the patient is one of the elements that must be proven in a medical malpractice case. “The minute that patient checks in, you have established that duty, whether or not you saw the patient,” Schmitz stresses.

The defense attorney can try to get the EP out of the litigation by proving the EP was not physically present at the time the patient was seen. The EP can testify to this at deposition. Even if the ED chart supports this claim, it’s no guarantee the plaintiff attorney will agree to dismiss the EP.

“Sometimes, you can get out of it, and sometimes, you can’t,” Schmitz laments.

Plaintiff attorneys have taken the position that any patient in the ED, whether in a treatment room, the hallway, or the waiting room, is the EP’s legal responsibility. “Unfortunately, that is part of our job,” Schmitz says. “We are legally responsible for anyone, regardless of where they are physically located, until somebody else is taking care of that patient.”

For instance, if an ED patient dies in the waiting room, plaintiff attorneys typically name every EP who was in the department when the incident occurred.

“It is hard to pinpoint an individual responsibility, so they go after everyone who was on duty at the time,” Schmitz explains. “EPs are not shielded from liability just because they were in a different room.”


  • Charles A. Eckerline Jr., MD, FACEP, Vice Chairman, Department of Emergency Medicine, University of Kentucky Medical Center, Lexington. Email: caeckel1@uky.edu.
  • Douglas N. Perlo, JD, Senior Partner, Ficksman & Conley, Boston. Phone: (617) 720-1515. Email: perlo@ficksman.com.
  • Gillian Schmitz, MD, FACEP, San Antonio (TX) Military Medical Center. Email: gillianmd@gmail.com.
  • Ryan M. Shuirman, JD, Partner, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6036. Fax: (919) 582-2536. Email: rshuirman@ymwlaw.com.