I have been working in emergency medicine for 24 years and reviewing medicolegal cases for over a decade - clinical negligence, personal injury, coronial work. Across all of that, the thing I keep coming back to is how poorly the realities of emergency department practice are understood by people outside it. Not through any fault of their own. The ED is a strange environment. It runs on incomplete information, competing priorities, and a continuous state of interruption...the real C.S.I.! When a solicitor picks up a case alleging delay in emergency treatment, they are stepping into that world - and the legal analysis must account for it.

Here are the areas I see most misunderstood.

Triage Is Not Diagnosis

This one, trips people up repeatedly. The Manchester Triage System assigns patients to a priority category - Red, Orange, Yellow, Green, Blue - based on presenting symptoms and physiological parameters. Orange means seen within ten minutes. Yellow means sixty.

The categories are the same whether there are 4 people in the department or 400.

The time target is the same whether there are multiple people dying or merely seeking a plaster.

Triage does not tell you what is wrong. It tells you how quickly someone needs to be assessed. A patient with back pain and urinary symptoms might be triaged Yellow. If that patient turns out to have early cauda equina syndrome, the triage category is not the failing. The question is what happened during and after triage. How quickly were they seen? What questions were asked? What was examined? What was done with the findings?

I see solicitors treat the triage category itself as evidence of breach. It almost never is. The real question is whether the information available at the point of triage should have triggered a different clinical response further down the line.

The Arithmetic of Triage

Think of it this way. An emergency department is not a clinic seeing one condition at a time. This is not one at a time medicine. It is closer to air traffic control - landing multiple aircraft simultaneously, every one of them different. A wide-body jumbo with failed hydraulics. A light aircraft low on fuel. A military jet with a cargo it cannot declare. A helicopter with an engine warning light. All of them circling, all of them needing the runway, and only one runway open. Or at least one runway less than the total need. The size of the aircraft is the acuity. The weather is the staffing level. The controller cannot park any of them in a holding pattern indefinitely and cannot land them all at once.

That is what an emergency department does, every shift, every day. All day.

The septic patient in resus. The elderly fall in the corridor. The chest pain in the waiting room. The child with a fever. The psychiatric crisis. Our friend who may book in to the department upward of 10 times a day. The major trauma arriving by ambulance in seven minutes. These are not sequential problems. They are simultaneous, and the clinical team is triaging not just the patients but its own attention, its own cognitive bandwidth, in real time.

There is a particular type of person that a senior colleague once enlightened me about, called the single-issue fanatic. These ‘SIFs’, as he called them, saw the emergency world as straight-forward. Their habitat was outside an emergency department. Their single issue is the of the utmost of priority. Now, to argue that sepsis should always be identified and treated within an hour, or that a suspected MI should have been acted on faster, or that a stroke should never be missed is one that is moot. Taken individually, each of those priorities is impossible to disagree with. Set a target. Meet a target. Rinse and repeat. Targets aren’t completely futile. Targets signal priorities and provide incentives for improvement. However, when everything is a priority then nothing is a priority.

Mimicry however respects no statements. Patients don’t come ‘checked in’ (to keep labouring the aviation parallel) with their diagnosis as hand luggage. Diagnoses are a both obvious and occult. Devilishly tricky and end of the bed obvious. And everything in between. An ED does not have the luxury of being held to ransom by a ‘SIF’.  It cannot organise its entire operation around one condition. It must manage all of them, simultaneously, safely, while overcrowded and under-resourced.

The most for the most.

The only guarantee with hindsight is that it always arrives late.

Individually though there is, or may be, a gap management challenge though.

That is where real emergency medicine lives. Not in the protocol for any one condition, but in the constant, unforgiving arithmetic of managing everything at once with less than you need. When solicitors evaluate a case, they need to understand that the clinician they are scrutinising was not sitting in a quiet room considering one patient. They were mid-way through a shift with twenty or thirty others, each of whom also needed something, and some of whom were deteriorating at the same time.

Hindsight Bias

If you take one thing from this piece, make it this.

By the time a case file lands on a solicitor’s desk, the diagnosis is known. The CT has been reported. The cultures have grown. The MRI has confirmed the cord compression. Everything looks obvious - because you are reading the story backwards.

That is hindsight bias, and it is the single biggest distortion in emergency medicine claims.

As mentioner, it always arrives late.

The standard is not “should the diagnosis have been made?” The standard is: given what was known, and what could reasonably have been found out at that point, was the decision-making acceptable? Those are very different questions. A patient who turns up at 2am with a headache and a normal neurological examination is not the same clinical proposition as the same patient twelve hours later with a confirmed subarachnoid haemorrhage. They only look the same if you already know the ending.

Claimant solicitors who build a case through the lens of hindsight will watch it fall apart under cross-examination. Defendant solicitors who ignore it may miss real failures that were identifiable at the time. A good expert will anchor the analysis in the contemporaneous picture. A good instructing solicitor will demand that.

The Disease Manifestation Curve

This follows directly from the hindsight problem, but it deserves its own space because it is so poorly appreciated outside the specialty.

Disease does not arrive fully formed. Emergency departments sit right at the start of the illness timeline. Mostly.

At time zero - the moment the patient walks through the door - the clinical manifestation of their condition is often at its lowest. Symptoms are vague. Signs can be subtle or absent. Bloods haven’t moved yet. Compensation - physiologically or biochemically is occurring. The septic patient hasn’t spiked a temperature. The aortic dissection hasn’t extended. The cauda equina is producing intermittent tingling, not a dense neurological deficit.

Give it time and the picture declares itself. That is how pathology works. It evolves.

Here is what strikes me. A patient admitted to a medical ward can spend two or three days having serial observations, repeated bloods, imaging, specialist reviews - and eventually a diagnosis is reached. If, it is reached. Nobody calls that a failure. But an emergency department clinician, seeing the same patient hours or even minutes into their illness, is expected to have cracked it in a single assessment. The four-hour performance target - whatever its current political status - has embedded an assumption that diagnosis should happen fast. Can happen fast. Must happen fast.

Sometimes it should. But often, the biology simply has not caught up yet.

So, the right question for solicitors is not just “was the diagnosis missed?” It is: at the point of the ED assessment, had the condition evolved enough to be reasonably identifiable? If the answer is no - and it frequently is - then the focus shifts. Not to the assessment itself, but to what happened next. Was the safety net adequate? Was the discharge advice specific enough? Did the patient know what to look for and when to come back? Was the risk formulated with rigour? Were known rarer complications considered?

Types of Delay

Not all delay is the same, and the distinction matters because each type raises different questions about breach and causation.

Delay to first assessment - the gap between arrival and being seen. Long waits happen. They are often not a breach. The question is whether the wait was reasonable given the department’s workload and acuity at the time. Context is everything.

Delay in investigation - the clinician has seen the patient but does not send the right test or does not chase the result. A D-dimer not requested when the Wells score warranted it. A CT head not ordered despite anticoagulation and a fall. These tend to be the strongest breach arguments because they sit squarely within individual clinical decision-making.

Delay in escalation - a junior doctor not calling for senior help, or a specialty referral not made with enough urgency. The standard is that of a reasonably competent clinician at that grade, but recognising the limits of your own competence and escalating is part of that standard.

Delay in re-assessment - the safety net that was never actually safe. The patient told to “come back if it gets worse” without being told what worse looks like. Or the patient who deteriorates in the department and is not re-examined. Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 confirmed that the duty of care extends to information given before a patient is even assessed - including waiting time estimates that might cause someone to leave.

What the Notes Actually Show

ED notes are often brief. That is normal. It does not, on its own, mean anything was done badly.

What matters is whether the notes show a reasonable process. Was a relevant history taken? Were red flags asked about? Was a differential considered? Was the plan appropriate?

The notes need to be defensible not defensive.

An essay to mitigate litigation risk is detracting from patients waiting to be seen while a word-smith scribes away.

More often, the problem is what is not there. No neurological examination documented in a patient with back pain and leg weakness. No rationale recorded for not imaging. No record of what safety-netting advice was given. Absence of documentation does not prove absence of care - but try defending it without any.

And pay attention to timestamps. Electronic systems log everything - triage time, request time, result time, discharge time. Rebuilding the timeline from those stamps will often tell you more than the clinical narrative ever does. But beware the ‘auto’ timestamp in some systems. Did it really happen when the computer said so.

Causation

Breach is usually the easier argument. Causation is where cases are won or lost.

The question is straightforward to state and often brutal to answer: if the patient had been seen, investigated, or treated earlier, would the outcome have been materially different?

For some conditions - stroke, sepsis, testicular torsion, acute limb ischaemia - the link between delay and outcome is well-evidenced. For others - a missed fracture, a delayed DVT diagnosis - you need careful analysis of what earlier intervention would realistically have changed, and over what timeframe.

This is where emergency medicine expertise hits its boundary. I can tell you what should have been done and when. The orthopaedic surgeon or neurologist or vascular specialist tells you what difference it would have made. Solicitors who instruct both disciplines early, and make sure they are talking to each other, end up with stronger cases. Those who treat each expert opinion in isolation often find the pieces do not fit together at trial.

Instructing Well

Send the full ED record. Include the triage documentation, the ambulance patient report form, any re-attendance notes. Electronic timestamps matter - include them. If there is a complaint response or internal investigation report, send that too, but bear in mind those documents serve a different purpose and are written to a different standard.

And frame the letter of instruction properly. “Was the care reasonable?” is too broad. Identify the specific windows of alleged delay. That is how you get a focused, useful opinion rather than a general commentary.

Emergency medicine sits at the front door. What happens in those first hours - the decisions made, the decisions not made, the information given or withheld - shapes everything that follows. Understanding how those decisions happen, the biological and operational realities that constrain them, and the unforgiving arithmetic of managing it all at once, is where good medicolegal analysis starts.