Minneapolis lawyer Teresa McClain can’t say exactly how many clients she has represented in medical malpractice lawsuits over the years.
“But you know what, I remember every single one of them,” she said. “They stay with me.”
McClain represents plaintiffs who claim an injury caused by a medical professional’s mistakes. About half of her cases involve newborns injured during deliveries gone wrong.
That specialty seems a natural choice for McClain. Before she was a lawyer, she spent 10 years as a nurse, working in labor and delivery — her “first love,” she calls it.
“It was intellectually challenging because things happen fast there; there are a lot of complexities to making sure babies are doing well before and during labor and delivery,” she said.
After acquiring a law degree, McClain said, she wanted to help “people who, through no fault of their own, had gone to get medical care and wound up with a very significant, permanent injury.”
McClain’s background as a labor and delivery nurse gives her a professional perspective on where mistakes might have occurred and whether a lawsuit is warranted, said Kathryn Messerich, a Dakota County District Court judge who retired in 2021.
“I think Teresa has a tremendously challenging job sorting out causal negligence that would support a medical malpractice lawsuit,” she said. Before moving to the bench, Messerich was a trial lawyer in medical malpractice suits, like McClain, and also like McClain, started her career as a nurse before obtaining a law degree.
However, Messerich represented health care professionals being sued.
“That’s where having a nursing background is helpful,” Messerich said. “I found as a defense lawyer it helped a lot, too. You know the language, you know the physiology, you know a lot about how hospitals operate.”
Lawyers don’t take on malpractice suits casually, both said. Minnesota law forbids frivolous malpractice lawsuits, requiring cases to be reviewed by a medical expert.
“We don’t go forward with a case unless we have credible evidence that negligence caused the injury,” McClain said. “There has to be evidence of pure negligence and a permanent severe disability.”
‘So many things can go wrong’
Over the past century, Americans have rightly become far less worried about the possibility of medical crises occurring during childbirth, and parents generally enter the process full of optimism. But to talk to McClain is to realize how easily things can go horribly wrong. Although they’ve become less common, injuries still occur in seven out of 1,000 births.
“Every health care provider who’s been around even a few years is going to have stories to tell — there are just so many things that can go wrong,” McClain said.
Messerich remembers what an expert witness, a longtime chief of obstetrics at a Twin Cities hospital, said during her first birth-injury case. “He told the jury that for every single birth he’d attended in his time, he was amazed that the child made the journey because it is so fraught with potential peril.”
In one harrowing case of McClain’s, a mother complained of fluid leakage before the birth. Her health care providers did not detect that it was amniotic fluid, signifying a dangerously ruptured membrane. The rupture led to an infection that traveled to the baby through the umbilical cord. The mother died and the baby sustained brain damage.
“He can’t communicate, can’t speak, can’t walk,” she said. “He needs assistance with just about everything, getting in and out of bed, toileting. He can eat, but only thick blended food. He has some cognitive issues. He understands speech, but there’s a lot of damage there. He’s going to need lifelong care.”
Legal claims from birth injury cases typically seek economic damages for costs associated with the injury, including ongoing therapeutic and medical expenses for the child, as well as noneconomic damages, such as loss of quality of life, pain and suffering.
Most of her cases are settled out of court. Because an injured child might need care for life, the cash value of a settlement can be high. Obstetricians pay higher insurance premiums as a result, but the common notion that obstetricians are being driven from the profession by malpractice suits is a myth, according to McClain.
Juries usually decide in favor of doctors, Messerich said, but even when parents win a case “it’s not a victory because they still have a disabled child whose future is uncertain.”
Even a favorable settlement or verdict is “bittersweet,” McClain said. “It’s never going to make up for the harm that’s been done. [The client will] have that disability for the rest of the injured child or adult’s life.”
The vast majority of babies arrive in safe and normal deliveries. But “giving birth is not without risk,” McClain said. “My goal is always to help my clients get resources to have the best quality of life they can with the injury they’ve been dealt.”