Patients are less likely to be admitted when the ED is crowded, according to the authors of a recent study.1 However, patients discharged during periods of crowding are not more likely to return to the ED within two weeks of discharge.

However, the fact that fewer patients are admitted when EDs are crowded does not necessarily mean patients are put at risk, says John Tafuri, MD, FAAEM. Some patients boarded in the ED for hours or even days find their condition improves during the lengthy wait. This allows them to be discharged safely.

“If you have somebody who you believe needs to be admitted, and you keep them in the ED until a bed becomes available, they may get better while in the ED,” explains Tafuri, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland.

Evidence that the ED was crowded will not help the defense, Tafuri says. It is more likely to benefit the plaintiff. During a recent busy day, Tafuri apologized to a woman who had arrived for evaluation but had to wait a long time before anyone could see her. Tafuri said that he was caring for a seriously ill cardiac patient simultaneously. The patient’s response was: “I don’t care about everybody else in the ED. I only care what happens to me.”

Tafuri says he believes jurors are likely to feel similarly if they are asked to consider that the EP was caring for multiple high-acuity patients at the time the plaintiff presented. The plaintiff attorney could respond to this by pointing out that the EP has a duty to every patient. For the plaintiff, the EP failed in that duty.

“It’s a difficult defense to pull off to say, ‘We were busy.’ Everyone knows EDs are busy,” says Tafuri. “It’s a general perception of the public that EDs aren’t staffed as well as they should be.”

In one malpractice case, an attorney went to great lengths to prove just how crowded the ED was at the time the plaintiff, who was later diagnosed with sepsis, presented. The attorney obtained the ED log during discovery, with identifying information redacted, listing only the patients’ presenting complaint. The log was used to show how many patients were receiving treatment and who was in the waiting room at the time of the plaintiff’s ED visit. “The attorney did this to illustrate that there were too many people in the ED as a way to demonstrate hospital liability and bring the hospital into the case,” Tafuri says. The case settled before trial.

Some EDs are routinely short-staffed on nursing or technicians due to call outs. Juries will not be sympathetic.

“If the ED couldn’t take care of a patient, the jury would likely blame the hospital, and possibly also the ED provider, for not having enough staff,” Tafuri says.

Understaffed EDs contribute to bottlenecks and hallway boarding, which increase liability risks. “What you don’t want is to have someone boarding in the hallway have a bad outcome. They already have an impetus to be angry with the hospital and, potentially, the EP as well,” Tafuri cautions.

Crowded waiting rooms raise the possibility of Emergency Medical Treatment and Labor Act complaints, too. “People leaving the hospital may allege that they did not get medical screening exams in a reasonable amount of time,” Tafuri says, noting this is especially problematic if ED records show many patients leaving routinely without seeing any healthcare providers because of long waits. “This is a particular problem if ED staff tell patients that there is no waiting, or a short wait, at another hospital,” Tafuri adds.

Of course, ED groups and hospitals can reduce these risks by increasing staffing. Still, this is a daunting challenge for hospitals already under financial pressure. “Hospitals and physician groups tend to staff to the mean, the average census or maybe a little bit above the average census,” Tafuri explains. “But if you staff to the mean, then every other day, theoretically, you’ll be understaffed.”

The public’s anger over long waits, delays, and hallway boarding contributes to malpractice risk as well. “Dissatisfaction is one of the primary things that drives patients to an attorney,” Tafuri says.

On the other hand, excellent communication with patients, particularly if boarding or extended wait times are occurring, can mitigate risks.

“If there’s confusion as to what happened in the ED, the patient or family is likely to contact an attorney,” Tafuri says. “It then usually becomes a lawsuit or complaint of some sort.”


  1. Abir M, Goldstick JE, Malsberger R, et al. Evaluating the impact of emergency department crowding on disposition patterns and outcomes of discharged patients. Int J Emerg Med 2019;12:4.