Will longer wait times mean more ED lawsuits?

Did a patient wait a long time in your ED, and did that patient have an adverse outcome? If these two events can be linked together by a plaintiff's attorney, it could result in a successful malpractice lawsuit against your staff or your institution.

It might not be too surprising that wait times are longer when EDs are more crowded. However, this occurs even for patients with life-threatening emergencies, according to a recent study. Researchers found that during crowded periods at four EDs, the adjusted median waiting room times of high-acuity level 2 patients were 3-35% higher than during normal periods.1

Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of Chest Pain Center at University Hospitals Geauga Medical Center, Chardon, OH, was surprised by this statistic from a recent Centers for Disease Control and Prevention (CDC) report: Patients needing immediate care waited an average of 28 minutes to be seen by a physician.2

"These are obviously the critically ill or injured and unstable populations with the highest risk of death, and permanent disability," says Garlisi. "The CDC study did not expound on why these patients waited an average of 28 minutes or whether there were nurses, physician assistants, or nurse practitioners engaged in the care of the patient until the physician became available. Whether the physicians were otherwise engaged in the care of other critical patients is unknown. But certainly it would be worth investigating the reasons for delays on this subset of high-risk patients."

With "time-sensitive" issues such as respiratory distress, trauma, or myocardial infarction, the burden is on the emergency staff to see patients and make correct accurate decisions quickly, while performing a myriad of other activities, says Garlisi.

"If the physician is overwhelmed, or if the ED is understaffed or rendered dysfunctional for any of a number of reasons, the patient may suffer an untoward outcome, and liability increases exponentially," says Garlisi.

Sympathy Is unlikely

Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center, says, "Long waits make for unhappy patients, and unhappy patients are more likely to sue. Waiting room deaths have made national news. It is clear that society is not forgiving of long waits."

Once patients are seen, crowding still can cause delays that can lead to increased morbidity and mortality, adds Schneider. "If the attorney can create the sense that the staff did not care, or that they downplayed the patient's symptoms, it is easier to convince the jury of malpractice," she says.

Emory Petrack, MD, FAAP, FACEP, a medical-legal consultant and principal of Shaker Heights, OH-based Petrack Consulting, says, "We have all seen the major news stories where a significantly ill patient collapses in the ED, which of course, is a disaster. There is certainly concern about liability for physicians and perhaps even more for the institution."

Garlisi fully expects attorneys to take advantage of the pitfalls created by overburdened EDs, "especially since it is clear that hospital leaders realize there are delays, even for critically ill or injured patients. If we fail to apply some reasonable solutions in a coordinated fashion, with hospital teams working side-by-side with emergency physicians, we can only blame ourselves."

One such solution involves taking patient acuity into account for ED staffing. Garlisi says, "One critically ill or injured patient can tie up a physician and two nurses long enough to paralyze the ED," he says.

As waiting times increase, so do your medical legal risks, Petrack says. "So there need to be some systems put in place to handle those problems as they occur," he says.

Patients have come in right after one of the highly publicized waiting room deaths and made comments such as, "You're not going to make me wait and die like that other patient, are you?" says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA.

"So they are well aware of the problem of crowding," says Lawrence. "And if they are already sensitized that bad things can happen, and then something bad does happen, I am sure they are going to be quite inflamed. There is no question that it is a difficult problem and one fraught with legal difficulties."

Lawrence notes, however, that only a small minority of patients to whom bad things happen ever sue. "Most of the time, physicians and hospitals get away with malpractice without ever having a suit. Anything that increases the possibility that somebody would be more likely to sue increases your risk," he says.

If an adverse outcome occurs to a patient who was left sitting out in the waiting room, "it obviously wouldn't look good in front of a jury," says Lawrence. "These are difficult cases. It raises all kinds of questions as to the adequacy of your triage procedures, for example. Juries may or may not be sympathetic to the crush of other patients being seen at the same time. It's a little less problematic if somebody finally gets seen and then something bad happens. At least they were seen."

Linda M. Stimmel, JD, a partner with the Dallas-based law firm of Stewart Stimmel, says that "increased wait times in EDs will of course mean that some patients may suffer injury and death due to the delay. A good plaintiff's attorney will use that `delay' to prove causation in a lawsuit against a hospital, physician, or triage nurse." However, the plaintiff's attorney will have to show that the delay or increased wait time was unreasonable or that the ED didn't have a competent triage system to identify the more seriously ill patients.

"A jury will not be able to blame a hospital or physician if the only fault that can be shown is increased traffic due to a population without health insurance," says Stimmel.


  1. McCarthy ML, Zeger SL, Ding R, et al. Crowding delays treatment and lengthens emergency department length of stay, even among high-acuity patients. Ann Emerg Med 2009; 54:492-503.
  2. Centers from Disease Control and Prevention. Estimates of Emergency Department Capacity: United States, 2007. Accessed at www.cdc.gov/nchs/data/hestat/ed_capacity/ED_capacity.htm.

Wait time too long? Reduce risks this way

To reduce legal risks, the best strategy is to "show diligence," says Linda M. Stimmel, JD, a partner with the Dallas-based law firm of Stewart Stimmel.

Document your ED's efforts to provide adequate staffing, and educate staff and physicians on improved triage techniques, such as attendance logs on inservices to improve triage.

Here are other risk-reducing practices:

• Address concerns of a patient or family member by providing an immediate reassessment.

Emory Petrack, MD, FAAP, FACEP, a medical-legal consultant and principle of Shaker Heights, OH-based Petrack Consulting, says, "When someone comes to a staff member, whether a physician, nurse, clerk or anybody, and expresses concern about their loved one, do not blow that off."

• Post signage and verbally inform patients to let the nurse know if their condition worsens.

"On some level, you are putting that responsibility on the patient," says Petrack. "I think it's fine to let people know that it's a busy ED, and you need to work with us to make sure you are taken care of."

• Keep patients informed continuously. Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA, says, "From a consumer standpoint, people often don't mind waiting, as long as they know what they're waiting for. But when it's busy, usually the triage nurse doesn't have time to go out there and make nice. And those are exactly those times that are most tension-filled."

Instead, an administrator might tell patients that an ambulance just brought in additional patients from a motor vehicle crash, and the ED staff is doing the best they can but an exact wait time can't be given.