The POWER 30: Teresa Fariss McClain

Robins Kaplan LLP

The United States has the highest mortality rate in the world for pregnant women and babies and it keeps increasing. That’s one reason why Teresa Fariss McClain is dedicated to representing mothers and babies who receive negligent medical care. A former labor and delivery nurse, she derives satisfaction from helping the families.

Presently, she’s litigating two cases of malpractice in cases where the mother died and the child has brain damage causing cerebral palsy. A continuing care plan for a baby born with cerebral palsy can be $10 million or more, McClain said. One is an older case that was delayed during the COVID-19 pandemic, and she expects to go to trial in 2024. The other is a newer case.

More medical malpractice cases are going to trial, McClain said. She attributes the change to a growth in insurance companies’ risk tolerance and new insurance companies moving into the market who are willing to go to trial. It used to be that about 90% of medical malpractice cases settled, but now it’s down to about 60%, she said. If defendants think they have a 50% or more chance of winning, they will take the case to trial. That causes a delay because many defense attorneys’ calendars are booked 15 to 18 months out, she said.

McClain is watching a bad faith case in Iowa brought by a doctor against her malpractice insurer for failing to settle, thereby exposing her to liability. Iowa allows a punitive damage claim in such cases, said McClain. A decision for the plaintiff could change other insurer’s strategies, she added.

On the other hand, McClain continued, “I think overall people are seeing more and bigger plaintiff’s verdicts.” There was concern during the pandemic that jurors would become more sympathetic toward providers, but that’s not happening, she said. McClain thinks jurors may have learned during the pandemic about restricted living as experienced by some with chronic illness or disability.