Melissa A. Dziak is a partner at Lucosky Brookman, where she focuses on medical malpractice defense and health care litigation. With more than 15 years of courtroom experience, she has represented physicians, nurses, hospitals, long-term care facilities and other health care providers in Pennsylvania and New York. She is also a certified mediator for the U.S. District Court for the Middle District of Pennsylvania, helping resolve complex civil disputes involving medical malpractice and personal injury claims. Her experience includes trial advocacy, high-exposure settlement negotiations and professional licensing matters before New York state regulatory boards.
In this Executive Q&A, Dziak discusses emerging malpractice risks, the liability implications of artificial intelligence, common mistakes following adverse events and strategies for strengthening malpractice defense and risk management.
How do the claims you’re defending today compare with those from five or 10 years ago?
The claims we are defending today are still familiar: failure to diagnose, delayed diagnosis, surgical complications, medication errors and failures in communication. But the way cases are developed, valued and presented has changed. More cases broaden from the specific medical treatment at issue to issues focused on the health care institution itself, including staffing, policies and procedures, supervision and training. The case develops from a discrete clinical decision being made into a much larger story about how the organization delivers care and treats its patients.
Also, given the implementation of AI into health care, there is much more information available today other than simply the physician notes and nursing notes. Audit trails, patient portals, secure communication, electronic alerts, time stamps and other electronic data come into play. This breadth of information can strengthen a defense or allow plaintiffs additional ways to reconstruct what they perceive happened.
What emerging legal or liability trend should health care executives be paying closer attention to over the next few years?
Artificial Intelligence is an area that requires close attention, particularly as it becomes integrated into clinical decision-making, diagnostic tools, documentation, patient portals and communication with patients. As the use of AI continues to increase, health care organizations need clear policies and training around how these tools are best used, reviewed and monitored.
As an example, if an institution uses AI to assist with diagnostic imaging and has a tool that flags potentially abnormal findings, identifies patients at risk for deterioration or generates an alert suggesting an intervention, from a litigation perspective, this can raise difficult questions. What was the clinician supposed to do with that alert? Who was responsible for reviewing it? What if the clinician didn’t agree with what the AI was suggesting? Are they expected to document why?
Without clear policies addressing these scenarios, it can be very easy, in hindsight, for a plaintiffs’ attorney to characterize an AI alert as a warning that was simply ignored, even when that wasn’t how the tool was designed or intended to be used.
What are the most common mistakes health care organizations make after an adverse event that later complicate a malpractice case?
The period immediately following an adverse event can have an enormous impact on future litigation. One mistake is offering explanations before the organization fully understands what occurred. Speculation can become problematic if a later investigation reveals a different sequence of events. Internal communications matter as well. Emotional, speculative, or blame-oriented emails and messages can become significant evidence years later. At the same time, organizations should not respond by becoming distant from patients and families. A sudden breakdown in communication can deepen frustration and distrust and be misinterpreted as lack of sympathy for the patient. The goal should be to investigate carefully while continuing to communicate appropriately and empathetically.
I also think it’s important to bring the right people into the conversation early. Risk management, clinical leadership, legal counsel and insurers should be communicating so everyone has a clear understanding of what happened and what information may need to be preserved. That early coordination also helps make sure quality-improvement and peer-review discussions are handled appropriately, and that the protections surrounding those processes are maintained.
What separates organizations that consistently defend claims successfully from those that struggle?
The strongest organizations prepare long before a lawsuit is filed. Their providers document not only what they did, but why they did it. That clinical reasoning can be enormously important when someone is asked to explain a decision several years later. They also have established processes for responding to adverse events, including structured communication with patients and families and early evaluation of whether pre-claim resolution may be appropriate. Just as importantly, they support and prepare their clinicians throughout litigation. A deposition may be a provider’s first experience being questioned in an adversarial setting, and thoughtful preparation helps them communicate their testimony clearly and accurately.
What advice would you give to health care executives facing their first significant malpractice lawsuit?
First, trust the legal team you’ve put in place and let them guide the process. It’s natural to want to dig into what happened or be involved in every decision, but malpractice cases really benefit from a coordinated approach, particularly when you’re dealing with issues involving privilege, discovery and internal communications that need to be preserved and protected.
Second, don’t forget about the clinicians involved. Being named in a malpractice lawsuit can be incredibly stressful for physicians and nurses, especially when a case goes on for several years. Making sure they feel informed and supported throughout the process can make a real difference.
Finally, recognize that these cases take time. There may be extensive discovery, expert reviews, depositions, motions and a trial. The best thing you can do is stay focused on the facts, keep communicating and be willing to reassess the strengths, weaknesses and opportunities for resolution of the case as the case develops.
If you could recommend one investment that would have the greatest impact on reducing malpractice risk, what would it be?
Invest in strong, proactive risk management that is connected to the clinical side of the organization. The best risk managers aren’t just getting involved after something has gone wrong. They understand what’s happening on the ground, have good relationships with physicians and nurses and can recognize issues before they turn into claims.
There is also a lot we can learn from cases that end up in litigation. Looking back at patterns, sharing those lessons with clinicians and providing practical education around things like communication and documentation can make a real difference. This can include involving defense counsel in educational programs and interactive discussions with the institution’s clinicians, built around issues seen in prior cases. It is a highly effective learning tool, particularly when we are able to address and discuss how clinical decisions, documentation and communications may look years later in a courtroom.
From my perspective as defense counsel, some of the best opportunities to reduce risk happen long before a lawyer gets involved. The more we can connect what we learn from litigation back to the people providing the care, the better.
