The odds of a patient safety event (defined as a near-miss event or adverse event) increase by 4.5% for every additional hour a patient stays in the ED, according to the authors of a recent study.1

Researchers analyzed various risk factors associated with patient safety events in the ED, using EHR and quality assurance data collected from 2010 to 2016. Some key findings:

  • Of 383,586 ED visits, 6,519 quality assurance issues were reported, with a patient safety incidence of 6.1%.
  • ED waiting time, time spent boarding in the ED, and total ED length of stay all were related to patient safety events.
  • The odds of a patient safety event increased by 5.2% for each additional hour spent boarding in the ED.

The added precautions taken during the COVID-19 pandemic have slowed triage processes somewhat, says Richard F. Cahill, Esq., vice president and associate general counsel at The Doctors Company in Napa, CA. Heavier patient volume, the use of personal protective equipment by both providers and patients, frequent cleaning of common surfaces, social distancing, and limitations on physical access mean longer waits for ED care. It is unclear what this means for malpractice risk.

“At this relatively early juncture in the pandemic, no readily identifiable increase in litigation has yet emerged from these developments,” Cahill reports.

Despite often lengthy wait times for ED patients, the same standards still apply when it comes to malpractice claims. “Plaintiff attorneys are still confronted with proving a prima facie case of medical negligence resulting in compensable harm by a preponderance of the evidence,” Cahill notes.

Evidence would be provided to a jury pool comprised of the general public, who likely strongly support the ongoing, selfless efforts of EDs providing care under difficult circumstances. The two questions the plaintiff’s attorney should consider will be:

  • Does it appear the patient suffered an injury, such as failure to diagnose, because of what the doctor apparently did or failed to do?
  • Did that conduct result in compensable monetary damages?

If so, an independent expert will look at the records and see what the patient complained about, what history was obtained, what tests were ordered (if any), and whether the presentation and findings warranted additional testing. Based on all that, the independent expert will look at whether the diagnosis and subsequent treatment were appropriate and consistent with the community standard.

“How long the visit lasted, which may not be determinable from the record, really is not the issue,” Cahill says.

If the ED is overwhelmed and a bad outcome happens, a patient who felt rushed out the door might suspect negligence. “If someone feels that they were given the ‘bum’s rush,’ that patient might subjectively think they got substandard care,” Cahill observes.

That patient might seek an attorney, but it does not prove malpractice occurred. “Just saying ‘It took only 20 minutes and should have taken longer’ does not do much to augment a patient’s claim or improve the likelihood of prevailing,” Cahill says.

There are two relevant questions: What was required by the standard of care? Would the “appropriate” care have resulted in a better outcome to a reasonable medical probability?

If a patient waited too long in the ED because of pandemic-related issues and experienced an adverse event, “it is not a COVID-19 issue. It is a triage issue,” Cahill offers.

EDs can reduce risks of adverse events and litigation by following these practices:

  • Implement clear procedures for treating patients (both for in-person visits and virtual encounters);
  • Follow recommendations by federal and state oversight agencies;
  • Audit charts on a regular basis to better ensure compliance with established policies and the prevailing community standard for other similarly situated hospitals;
  • Inform patients of the protocols at the outset (i.e., the triaging process, anticipated wait times, alternate treatment modalities such as telehealth, and the reasons for the new procedures).

“This will enhance the patient experience, decrease the risk of litigation, and help to promote optimum medical care,” Cahill explains.


  1. Alsabri M, Boudi Z, Zoubeidi T, et al. Analysis of risk factors for patient safety events occurring in the emergency department. J Patient Saf 2020; Jul 1. doi: 10.1097/PTS.0000000000000715. [Online ahead of print].