Ontario emergency departments are under sustained pressure. Wait times are long. Patients in significant distress sometimes wait many hours to be seen. A small but growing proportion of these patients leave before a physician has examined them.
The Canadian Institute for Health Information has documented the trend. CTV News, reporting on CIHI data in 2023, indicated that 184,753 patients left a Canadian ER without being seen by a physician in 2003 to 2004; by 2022, the number had grown to more than 963,000 across more than 14 million ER visits. The trajectory has been steady, with a small dip in 2020 to 2021 during the early pandemic when ER visits as a whole declined. The five-fold increase over two decades reflects both rising ER demand and the structural pressures on the system.
For most patients, leaving without being seen is a low-stakes inconvenience. Symptoms resolve. The underlying issue turns out to be non-emergent. The patient sees a different physician later. For a small number of patients, the consequences are catastrophic. Charlene Snow, age 67, attended Cape Breton Regional Hospital in late 2022 with jaw pain and flu-like symptoms, waited approximately seven hours, left, and died at home shortly afterward of a treatable cardiac condition. Her case attracted national attention. It is not the only one.
If you leave an ER before being seen and a harmful medical event occurs shortly afterward, two distinct legal questions arise. The first is whether the hospital and its staff acted negligently in connection with your care. The second is whether you acted reasonably in leaving. Both questions can produce findings that affect any subsequent malpractice claim. This post addresses both.
The clinical context: triage, wait times, and “leaving without being seen”
When a patient arrives at an Ontario emergency department, they are triaged by a nurse using the Canadian Triage and Acuity Scale (CTAS). The CTAS levels are:
- CTAS 1 (Resuscitation): Immediate physician assessment required. Examples include cardiac arrest, severe trauma, anaphylaxis.
- CTAS 2 (Emergent): Physician assessment within 15 minutes. Examples include chest pain with cardiac features, severe respiratory distress, signs of stroke.
- CTAS 3 (Urgent): Physician assessment within 30 minutes. Moderate acute conditions, significant abdominal pain, moderate trauma.
- CTAS 4 (Less Urgent): Physician assessment within 60 minutes. Stable acute conditions, minor trauma.
- CTAS 5 (Non-Urgent): Physician assessment within 120 minutes. Stable chronic conditions, minor presentations.
The CTAS target times are not the same as actual wait times. In a department that is functioning within its design capacity, most patients are seen within their CTAS window. In a department that is overcrowded, wait times can extend substantially beyond the targets, particularly for CTAS 3, 4, and 5 patients.
A patient who leaves the ER after triage but before a physician assessment is counted in the CIHI category of “Left Without Being Seen” (LWBS). This is administratively distinct from “Left Against Medical Advice” (AMA), which applies when a patient leaves after physician assessment has begun but before treatment is complete. The legal analysis differs slightly between the two categories, but the underlying framework is similar.
The CTAS level matters legally. A patient who was triaged at CTAS 2 (emergent) and then waited two hours has a stronger argument that the wait itself was unreasonable than a patient triaged at CTAS 5 (non-urgent) who waited two hours. The triage rating is the hospital’s contemporaneous assessment of how urgent the patient’s needs were; if the wait substantially exceeded the CTAS target, the hospital’s own assessment is evidence of the problem.
Two distinct legal questions
When a patient leaves the ER and is subsequently harmed, the analysis breaks into two distinct components.
The first question is whether the hospital and its staff acted negligently. This is the standard medical malpractice analysis. The relevant questions include:
- Was the initial triage correct? Were the patient’s symptoms accurately captured and rated?
- Did the wait substantially exceed the CTAS target?
- Did the hospital have systems in place to reassess waiting patients whose conditions might deteriorate?
- When the patient left, did the hospital follow its own LWBS policies? (Many hospitals have callback systems for high-risk LWBS patients.)
- Did the staff communicate adequately with the patient about wait times, options, and risks?
If any of these questions produces a “no” that contributed to the harm, the hospital may have breached its standard of care.
The second question is whether the patient acted reasonably in leaving. The law in Ontario does not require patients to wait indefinitely for care. It does require them to act reasonably given the circumstances. Section 3 of the Negligence Act governs the apportionment framework: where the plaintiff’s own conduct contributed to the harm, the court can reduce damages to reflect the plaintiff’s share of responsibility.
The reasonableness inquiry considers what a reasonable patient in the same circumstances would have done. The relevant factors include:
- How long the wait was, and what the patient had been told about expected further wait
- The severity of the patient’s symptoms when they decided to leave
- Whether the patient’s symptoms had worsened during the wait
- Whether the patient communicated worsening symptoms to triage or nursing staff
- What the patient understood about the risks of leaving
- What the patient did after leaving (sought care elsewhere, went home, attempted to self-manage)
A patient who leaves after a five-hour wait, has communicated worsening symptoms to nursing staff several times, and is told the wait will continue indefinitely, has a stronger reasonableness argument than a patient who leaves after one hour without notifying anyone and goes home to sleep.
The contributory negligence framework
Where both questions produce findings of fault (the hospital was negligent and the patient acted unreasonably in leaving), Ontario law uses the contributory negligence framework to apportion the loss.
The court determines the percentage of fault attributable to each party. The damages are then reduced by the plaintiff’s percentage. Common ranges are:
- 10 to 25 percent: Where the patient’s conduct was a contributing factor but the hospital’s or physician’s negligence was the dominant cause
- 25 to 50 percent: Where the patient’s conduct was a substantial factor alongside the hospital’s negligence
- 50 percent or more: Where the patient’s conduct was the dominant cause and the hospital’s negligence was secondary
- 100 percent: Rare. Reserved for cases where the patient’s conduct was so unreasonable that it severed the causal chain
In Martindale v Bahl, the Ontario Superior Court of Justice held that, had liability otherwise been established against the defendant physicians for a delayed cancer diagnosis, the plaintiff would have been 40 percent contributorily negligent for repeated failures to follow up over a four-month period. The 40 percent figure illustrates that contributory negligence in a healthcare context can substantially reduce recovery without eliminating it entirely.
The Martindale case engaged a slightly different fact pattern (failure to follow up rather than failure to wait), but the legal framework is the same. A plaintiff whose conduct is found to have contributed to the harm faces a reduction in damages proportionate to their share of responsibility.
The interaction: when both parties are at fault
In many LWBS cases that produce harm, both the hospital and the patient have some share of responsibility. The hospital may have understaffed the triage area, failed to reassess patients whose waits exceeded their CTAS targets, or failed to communicate adequately about wait times. The patient may have left without notifying anyone, declined to update staff about worsening symptoms, or chosen not to seek alternative care.
In these mixed-fault cases, the apportionment framework determines the recovery. The damages calculation begins with the full loss and is then reduced by the plaintiff’s percentage of fault. A one-million-dollar loss with a 25 percent contributory negligence finding produces a recovery of $750,000. The same loss with a 40 percent finding produces $600,000. The percentages are determined by the trial judge on the basis of the evidence.
Importantly, contributory negligence does not extinguish the claim. A patient with a strong underlying claim against a hospital is rarely better off not pursuing it because of the risk of a contributory negligence finding. The framework is one of apportionment, not of automatic forfeiture.
Practical considerations before leaving
If you are considering leaving an ER before being seen by a physician, the following considerations may help.
Communicate with the triage or nursing staff before leaving. Tell them that you are considering leaving, why, and what your current symptoms are. Ask whether your wait might be reduced based on current conditions. The conversation creates a record, allows the staff to reassess your situation, and may produce an updated triage rating or an immediate assessment.
Document worsening symptoms. If your symptoms have changed during the wait (worsening pain, new symptoms, changes in mental state, dizziness, breathing difficulty), tell the staff and ask for reassessment. Worsening symptoms can upgrade your CTAS level and reduce your wait.
Understand what to do if you leave. If you do leave, know what symptoms should prompt you to return urgently. Ask the triage nurse before you leave: “What should I watch for that would mean I need to come back right away?”
Have a plan for follow-up. If you leave because the wait is too long, what is your plan? Will you see your family physician the next day? Will you go to a different ER? Will you go to a walk-in clinic? A plan with specific next steps is meaningfully better than going home and hoping for the best.
Keep your own record. Note your arrival time, your CTAS level (if you can find it), the symptoms you communicated, and what staff told you. If you have a smartphone, photograph the discharge information or any documents you receive. This record is useful if you later need to engage with the hospital’s patient relations process or if a legal claim becomes necessary.
What to do if harm occurs after leaving
If you leave an ER before being seen and a harmful medical event occurs, the following steps protect your legal position.
Seek medical care immediately. Your health is the first priority. Go to another ER, see your family physician urgently, or call 911 if your symptoms warrant it.
Document what happened. Write down the timeline of your ER visit, what you were told, what you communicated, when you left, and what happened afterward. The contemporaneous record is the most reliable account of events.
Request your records. You have a right of access to your hospital records under the Personal Health Information Protection Act (PHIPA). Request your triage record, any nursing notes, and any documentation of your decision to leave. See How to Get Your Medical Records in Ontario for the process.
Consider the broader landscape. Hospital patient relations, the regional health network, the Patient Ombudsman, the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, and (in cases of death) the Office of the Chief Coroner all have roles. The complaints and reviews landscape is summarized in A Patient’s Guide to Making Complaints About Health Care in Ontario.
Consult experienced counsel. A medical malpractice lawyer can assess whether the hospital’s care was negligent, whether the contributory negligence risk is meaningful in your case, and what damages might realistically be recoverable. The threshold for a viable claim is informed by the medicine, not just the wait. See Suing for Medical Malpractice in Ontario: What You Need to Know.
The broader ER context
This post fits within a substantial body of content on this site addressing emergency-medicine malpractice in Ontario:
- Five Dangerous Diagnoses Missed in Ontario Emergency Rooms: a clinical primer on the five categories of presentation that most often produce missed diagnoses
- Hallway Medicine in Ontario: When Overcrowded Emergency Rooms Lead to Medical Malpractice: the doctrinal framework when system overcrowding contributes to harm
- Thompson v Handler: a Notable Case I conducted involving an ER discharge that should not have occurred
- Coville Estate v Sellens: a case comment on an ER that met the standard of care in a pneumonia death
The legal questions in ER malpractice cases overlap significantly. Wait times, triage decisions, discharge timing, missed diagnoses, and patient conduct all interact. The framework set out in this post engages one component of the larger picture: what happens when the patient leaves before being seen.
Final thoughts
Ontario’s emergency departments are not always able to see every patient within the CTAS target time. Some of that is structural, some of it is operational, and some of it reflects the cumulative effect of years of healthcare-system pressure. None of it is the patient’s fault.
The legal framework does not require patients to wait indefinitely. It requires them to act reasonably in the circumstances. A patient who communicates with staff, asks for reassessment when symptoms change, and seeks alternative care if they leave has a stronger position than one who does not. A hospital that fails to triage accurately, fails to reassess waiting patients, or fails to follow up with high-risk LWBS patients may be liable for harm that follows, even where the patient also has some share of responsibility.
If you or a family member has been harmed after leaving an ER without being seen, the right next steps are medical care, documentation, records, and (where appropriate) consultation with an experienced medical malpractice lawyer. The first conversation is free, and the earlier the records are looked at, the better.
