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Malpractice Outcome Hinges on ‘Reasonableness’ of Wait Time

By Stacey Kusterbeck

When people are tired of waiting and walk out of EDs before undergoing treatment, it creates safety risks for the patient and legal risks for the provider. From a malpractice standpoint, “a patient voluntarily leaving the ER without treatment or being seen raises interesting issues,” says David Sumner, JD, a Tucson, AZ, medical negligence specialist with a multistate trial practice.

If a bad outcome happens, the patient or family might sue the ED for making the patient wait too long. Patients who leave without being seen (LWBS) are not uncommon, and sometimes return to the department worse off. Researchers analyzed 45,456 visits to a Midwestern ED that happened in 2019 and 2020.1 They found 5% of patients LWBS. The median documented time patients waited before leaving the ED was 112 minutes. Fifty-five percent of LWBS patients engaged in a healthcare encounter within the next three weeks. Most of those visits were related to the chief complaint from the first ED visit. Of patients who returned to the ED, 78% came back within 72 hours. “Unreasonable delays in patients being roomed or ultimately seen by an ED provider can result in liability for the ED and hospital,” Sumner says.

If the patient walks out before triage, liability depends on how long he or she waited for triage, along with the patient’s condition at the time of registration or initial presentation. Since the patient left before triage, there is no medical record for that patient. “The absence of ED charting would no doubt present special challenges for the plaintiffs’ attorney,” Sumner says.

However, there is other evidence that can show the patient’s condition at the time of the ED visit. If a primary care physician referred the patient to the ED, there will be an objective record of the patient’s condition at the time of referral. EMS records or testimony of family members or friends also establish the patient’s condition just before arrival. “Even without a triage or ED provider notes, it is still possible to prosecute an action for negligence by relying upon prior treatment records and testimony,” Sumner explains.

Other patients are triaged, but leave before any staff can bring them back for an evaluation. The plaintiff attorney might demonstrate an inappropriate triage assessment put an urgent or emergent patient on a slower track, delaying treatment. “I can see potential liability for the hospital — and triage nurses, which typically are hospital employees, may be individually named, too,” Sumner says.

Patients typically claim they would not have left the ED if they knew the risks. “I have never seen a case where a LWBS patient was warned about the risks of leaving,” Sumner reports.

Frustrated patients simply walk out without any interaction with providers. “However, absent special or unusual circumstances, a LWBS note on the chart will prevent an ED medical malpractice claim from being prosecuted most of the time,” Sumner adds.

Only including a statement indicating the patient is no longer in the ED is not sufficient. The chart should specify why staff concluded the patient was gone. In one malpractice case, the chart stated the patient left the ED at a certain time, but also indicated the patient received treatment hours later. It became apparent the patient had been in the ED the entire time. “The LWBS note should be detailed enough to demonstrate reasonable efforts to locate or page the patient,” Sumner says.

Sumner recalls malpractice cases in which patients were triaged as level 3 or 4, but still waited four to six hours to be brought back to a room and thoroughly assessed. “This may be inexcusable in court, absent extraordinary surges that could not be anticipated or other compelling mitigating circumstances,” Sumner says.

Triage nurses might testify those wait times are normal for level 3 or 4 patients. But just because it happens all the time does not exonerate the ED. “If a normal delay for that ED is an unreasonable delay under the circumstances, or if there is evidence of inadequate staffing, the ED can still be liable,” Sumner says.

To prevail in malpractice litigation involving an LWBS patient, the patient must prove the ED’s failure to treat the patient within the time frame of the visit violated the standard of care. Also, the attorney must prove his or her client suffered harm as a result of that violation.


1. Roby N, Smith H, Hurdelbrink J, et al. Characteristics and retention of emergency department patients who left without being seen (LWBS). Intern Emerg Med 2022;17:551-558.