A&E and Emergency Department Negligence: When Can You Claim?

You can bring a clinical negligence claim against an A&E or emergency department if the care you received fell below the standard expected of a reasonably competent emergency medicine team, and that failure caused you harm that would not otherwise have occurred. Emergency departments operate under significant pressure, but pressure does not lower the legal standard of care: a patient who attends A&E is owed the same duty of care as any other NHS patient, from the moment of triage onwards.

This guide explains the legal basis for A&E negligence claims, the most common types of failure that give rise to them, how the standard of care is assessed in an emergency setting, and what the process of bringing a claim involves.

Does an A&E Department Owe You a Duty of Care?

Yes. Once you attend an emergency department and present yourself for treatment, the NHS trust operating that department owes you a duty of care. This duty arises at the point of triage, not only once you have been formally clerked by a doctor. The triage nurse who assesses your priority level, the emergency physician who examines you, and the department as a whole are each under a legal obligation to exercise reasonable skill and care in assessing and treating your condition.

The duty extends to the decision to discharge you. A patient who is sent home from A&E with inadequate safety-netting information, or whose condition was not adequately assessed before discharge, remains within the scope of the duty of care owed by the department.

How Is the Standard of Care Assessed in an Emergency Setting?

The standard of care in an A&E negligence claim is assessed using the Bolam test, established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. A clinician is not negligent if their conduct accords with a practice accepted as proper by a responsible body of medical opinion in the relevant specialty. In the emergency setting, this means the conduct is assessed against the standard of a reasonably competent emergency medicine physician or triage nurse, not against the standard of a specialist who would only see that condition in a planned referral setting.

The Bolam test is subject to the qualification established by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. A body of expert opinion relied upon by a defendant must be capable of withstanding logical analysis. Where a clinical decision in A&E, such as discharging a patient with chest pain without performing an ECG, cannot be logically justified in the circumstances of the presentation, it will not be protected by peer support alone.

The Pressure Argument Does Not Lower the Standard

A point that comes up frequently in A&E negligence claims is whether the pressure under which emergency departments operate, including staff shortages, overcrowding, and long waiting times, reduces what a patient is entitled to expect. The answer in law is no. The four-hour target, which measures the proportion of patients seen, treated, and either admitted or discharged within four hours of arrival, is a managerial performance standard. It is not a legal standard and its breach is not itself evidence of negligence. More importantly, meeting it does not provide a defence where the clinical care provided fell below an acceptable standard. A court will assess what a competent emergency clinician should have done in the circumstances, not what was achievable given the pressures of the day.

The Role of NEWS2 and Triage in Assessing Clinical Standards

Two clinical tools are central to the assessment of standard of care in most A&E negligence claims.

The Manchester Triage System (MTS) is a five-level triage framework widely used in NHS emergency departments. It assigns patients a priority level from immediate through to non-urgent based on presenting symptoms and discriminators, and sets out the maximum waiting time applicable to each level. A failure to triage correctly, or to re-triage a patient whose condition has deteriorated in the waiting room, can be a significant departure from the required standard.

The National Early Warning Score 2 (NEWS2) is the tool used to identify patients who are deteriorating during their time in the emergency department. NEWS2 assigns a score based on six physiological parameters: respiratory rate, oxygen saturation, blood pressure, heart rate, temperature, and level of consciousness. A NEWS2 score of five or more should trigger urgent clinical review and consideration of sepsis as a cause of deterioration. A failure to record NEWS2 observations at appropriate intervals, a failure to act on a rising score, or a failure to escalate a patient whose score indicates significant clinical deterioration are each recognised forms of clinical failure that can form the basis of a negligence claim.

In any A&E negligence claim, your solicitor will obtain the full set of A&E records including the triage notes, the NEWS2 observation chart, the clinical assessment notes, the investigation results and their timing, and the discharge documentation. An independent emergency medicine expert will then assess whether the care provided met the required standard at each stage of the attendance.

Common A&E Failures That Give Rise to a Claim

Missed or Delayed Diagnosis of Serious Conditions

Misdiagnosis in an emergency setting can cause catastrophic harm, particularly where the condition missed is one in which time is directly linked to outcome. Common examples include:

• Stroke: failure to recognise the presenting signs using the FAST assessment (Face, Arms, Speech, Time) and to initiate urgent CT imaging and thrombolysis within the applicable window
• Myocardial infarction: failure to perform or correctly interpret an ECG in a patient presenting with chest pain, arm pain, or unexplained breathlessness
• Pulmonary embolism: failure to investigate shortness of breath and pleuritic chest pain in a patient with risk factors for thromboembolic disease
• Aortic dissection: failure to consider and investigate a potentially life-threatening cause of severe chest or back pain
• Meningitis: failure to recognise the signs of bacterial meningitis, including photophobia, neck stiffness, and a non-blanching rash, and to administer empirical antibiotics without delay
• Ectopic pregnancy: failure to test for pregnancy in a woman of reproductive age presenting with abdominal pain or unexplained collapse

Missed Sepsis

Sepsis is among the most serious and time-critical conditions encountered in the emergency setting. It occurs when the body’s response to infection begins to damage its own tissues and organs, and without prompt treatment it can progress to septic shock, multi-organ failure, and death. The UK Sepsis Trust and NHS England have published clear clinical criteria for the identification and management of sepsis, and NICE guideline NG51 sets out the standards for recognition and response.

A failure to identify the clinical indicators of sepsis, to record and act on a NEWS2 score indicating systemic deterioration, or to administer intravenous antibiotics within the applicable timeframe once sepsis is suspected are all serious clinical failures that are well recognised in A&E negligence litigation. Where delayed treatment for sepsis results in amputation, organ failure, or death, the consequences are permanent and the harm is very significant.

Failure to Identify Fractures and Orthopaedic Injuries

Missed fractures are among the most commonly reported failures in the emergency setting. They arise from failures in clinical examination, radiological errors in reading plain X-rays, and failures to arrange imaging at all where the mechanism of injury and clinical findings should have prompted it. A missed fracture that is sent home untreated can result in malunion, avascular necrosis, or permanent functional impairment that would have been avoided with correct initial management.

Inadequate Assessment Before Discharge

A patient who is discharged from A&E without adequate clinical assessment, or who is sent home without appropriate safety-netting information about what symptoms should prompt them to return, may suffer serious harm if their condition deteriorates after discharge. Where the decision to discharge was made without an adequate examination or investigation of symptoms that warranted further assessment, and where the patient subsequently suffers a serious deterioration that earlier intervention would have prevented, a claim may be available.

Failure to Refer for Specialist Assessment

An emergency department that identifies a clinical picture requiring specialist input, but fails to arrange that review before discharging the patient, may be liable where the failure leads to harm. Common examples include a failure to refer for urgent cardiology assessment after an abnormal ECG, a failure to arrange urgent surgical review where the clinical presentation suggested an acute abdomen, and a failure to involve a specialist in the management of a deteriorating patient.

Causation: Proving the Failure Made a Difference

Establishing causation in an A&E negligence claim requires the claimant to show on the balance of probabilities that the failure caused or materially contributed to the harm suffered. In time-critical conditions, this typically requires expert evidence addressing what would have happened if the correct assessment, investigation, or treatment had been provided within the timeframe it should have been.

Where the condition is one in which the outcome is strongly linked to the speed of intervention, such as stroke, myocardial infarction, or sepsis, the causation evidence will address what the clinical picture would have been with correct and timely management and what degree of harm, if any, would have remained even with prompt treatment. In cases involving missed fractures or other structural injuries, causation focuses on whether correct initial management would have produced a better functional outcome than the claimant has actually achieved.

Time Limits

The standard three-year limitation period under the Limitation Act 1980 applies to A&E negligence claims. The period runs from whichever is the later of the date of the attendance and the date on which the claimant first had, or ought reasonably to have had, the knowledge that the harm they suffered may have been caused by a failure in their emergency care. In cases involving a missed diagnosis that was only discovered later, or where the patient was unconscious or incapacitated at the time of the attendance, the date of knowledge provision under section 14 of the Act may give additional time.

Children have until their 21st birthday to bring a claim arising from A&E negligence occurring before the age of 18. Adults who lack mental capacity are protected from the limitation period running while their incapacity continues.

What to Do Next: Starting a Claim

If you believe you were harmed by negligent care in an A&E or emergency department, the practical steps are as follows:

1. Seek specialist legal advice promptly. A clinical negligence solicitor will assess the circumstances and advise on whether the care you received is likely to have fallen below the required standard.
2. Medical records are obtained. Your solicitor will request the full A&E records, including triage notes, NEWS2 charts, observation records, investigation results, and discharge documentation.
3. Independent expert evidence is commissioned. An emergency medicine expert will review the records and provide an opinion on whether the care met the required standard and, if not, whether the failure caused your harm.
4. A letter of claim is sent. Once the evidence supports a claim, a formal letter is sent to the relevant NHS trust under the Pre-Action Protocol for the Resolution of Clinical Disputes, giving the trust the opportunity to investigate and respond before proceedings are issued.

Most A&E negligence claims are resolved through negotiated settlement rather than a court hearing, particularly where the clinical records provide a clear and well-documented account of what occurred.

Talk to Satchell Moran Solicitors

Being harmed by a failure of care in an emergency department is a particularly distressing experience, often occurring at a moment of acute vulnerability. At Satchell Moran Solicitors, our specialist clinical negligence team has the expertise to assess A&E negligence claims carefully and to build a properly evidenced case on your behalf. We act on a no win, no fee basis, so there is no financial barrier to finding out whether you have a claim. As a dual Lexcel accredited firm, we are committed to the highest standards of client care throughout.

If you believe you or a family member received negligent care in an A&E or emergency department, contact us today for an initial, confidential and no obligation conversation.