As emergency department wait times rise, medical malpractice claims turn on more than the length of the delay
Two patients arrive at an emergency department and wait four hours to see a physician. One has a relatively minor, stable condition. The other presents with sudden weakness on one side, difficulty speaking and facial drooping — classic warning signs of a stroke. Although both patients experience the same delay, the clinical urgency of their conditions, and the potential legal implications of the care they receive, are vastly different.
The standard of care is informed by the urgency of a patient's clinical condition, not simply the length of time they spend waiting,” says Mahsa Dabirian, partner at Bogoroch & Associates LLP. “The critical questions are whether the patient received appropriate care in light of their presentation, whether earlier assessment or intervention was warranted, and ultimately, whether the delay contributed to an adverse outcome.”
Increasing pressure on emergency departments
The Canadian Institute for Health Information's (CIHI) Wait Times in Canada, 2026 report paints a concerning picture of the pressures facing Canada's health-care system. In 2024–2025, 16.1 million emergency department visits were reported, with approximately two-thirds involving patients triaged as high acuity. Half of patients waited just under two hours for an initial physician assessment, while one in ten waited more than five hours. Between 2018–2019 and 2024–2025, the proportion of high-acuity visits increased from 59 to 66 per cent, reflecting a patient population presenting with increasingly urgent medical needs.
These findings are particularly significant because longer waits are occurring alongside greater clinical complexity. Emergency department congestion is also symptomatic of broader systemic pressures, including limited access to primary care, shortages of inpatient beds and insufficient long-term care capacity. The resulting bottlenecks affect patients throughout the continuum of care, from initial assessment to diagnosis, admission and treatment.
While these systemic challenges provide important context, they do not eliminate the obligation to provide reasonable medical care. "Courts do not assess medical decisions with the benefit of hindsight or expect perfection," Dabirian explains. "The question remains what a reasonably prudent health-care professional would have done in the circumstances at the time. Systemic pressures are relevant, but they do not automatically excuse a failure to provide reasonable care."
When does a delay become negligence?
A prolonged wait does not in and of itself establish medical negligence. The critical question is whether the patient's clinical presentation warranted earlier assessment, investigation or intervention, and whether the care provided met the applicable standard.
In an emergency department, this analysis often begins with triage. Patients must be prioritized according to clinical urgency, but an appropriate initial triage designation does not necessarily remain appropriate as time passes. A patient's condition may deteriorate, requiring further assessment, repeat vital signs or escalation of care. Similarly, delays may arise after the initial physician assessment, including failures to investigate concerning symptoms, review abnormal results, obtain specialist consultations or initiate time-sensitive treatment.
"One of the important considerations is that triage is not necessarily a one-time assessment," Dabirian says. "A patient may be appropriately categorized when they arrive, but their condition can change significantly while they are waiting. The failure to recognize and respond to that deterioration may become the central issue in a medical malpractice case."
The contemporaneous medical record is therefore critical. Triage documentation, nursing assessments, vital signs, physician orders, diagnostic imaging timestamps and consultation requests can help establish not only the duration of a delay, but whether the patient's evolving clinical condition was appropriately recognized and managed.
Causation: the more difficult hurdle
Even where a plaintiff establishes that assessment or treatment was unreasonably delayed, proving negligence is only part of the legal analysis. The plaintiff must also establish, on a balance of probabilities, that the delay caused the injury or condition complained of.
This can be particularly challenging where patients present with serious or rapidly evolving conditions, such as stroke, sepsis or aortic dissection. The central question becomes what would probably have occurred had the patient received timely care. Would earlier diagnosis or intervention have prevented the injury, reduced its severity or altered the ultimate outcome?
"Establishing that care should have been provided sooner is only half the battle," Dabirian explains. "I've had cases where the standard of care was clearly breached by the health care provider, but the difficulty was establishing that earlier intervention would have changed the outcome. In medical malpractice litigation, causation is often the more difficult hurdle to overcome to obtaining compensation for a victim of malpractice."
In one case handled by Bogoroch & Associates LLP, a patient presented with apparent symptoms of a stroke but did not receive appropriate diagnostic imaging in a timely manner. The resulting delay postponed the diagnosis and the opportunity for neurosurgical intervention that, according to the plaintiff's expert evidence, would have prevented the patient's death. The case ultimately settled.
"Stroke is a particularly compelling example because time is brain," Dabirian says. "There are established protocols for the assessment, imaging and treatment of patients presenting with stroke symptoms. Where those protocols are not followed, the consequences of delay can be devastating."
Beyond the clock
CIHI's findings underscore the growing challenges facing Canada's health-care system, particularly as emergency departments manage increasingly acute patient presentations amid persistent resource constraints. Although longer waits do not necessarily translate into medical negligence, they heighten the importance of timely assessment, ongoing reassessment and appropriate intervention.
"Not every delay is negligent, and not every negligent delay changes the outcome," Dabirian says. "But where a patient has a time-sensitive medical condition, the failure to recognize and respond to it can have devastating consequences.”
Bogoroch & Associates LLP is a leading Toronto-based litigation firm specializing in medical malpractice and serious personal injury litigation. For a free consultation, visit our website.
This article was produced in partnership with Bogoroch & Associates LLP
