Medical Malpractice Law: A Brief Look at Current Issues and the Value of Mediation

By Kelly K. James


While the fact pattern of every medical malpractice case may be different, these cases often feature complicated medical issues, heightened emotions, and millions, even tens of millions, of dollars in claimed damages. An understanding of the challenges faced by both plaintiffs and defendants, and recent trends in medical malpractice law, can help attorneys to better prepare to litigate these kinds of cases. Read on for a closer look at medical malpractice trends in Missouri, and why these cases are often well-suited for mediation.


Current Trends in Missouri Malpractice Law

One of the current trends in Missouri malpractice law is efforts by plaintiffs to “avoid non-economic caps by creating very large life care plans [medical valuations of a person’s medical conditions and the future care he or she will need] and use of narratives (such as the “reptile strategy”) to cast health care providers as unsafe or inattentive,” says Richard K. Hunsaker, a medical malpractice attorney and mediator at Heyl Royster and United States Arbitration & Mediation (USA&M), both based in St. Louis. “Agency and credentialing claims seem to be an ongoing topic of discussion in recent appellate court cases.”


In litigation, the “reptile strategy” is predicated on the idea that humans have a “reptilian brain” that is designed to keep us safe, and alive. That part of our brain may make us respond emotionally, rather than rationally, when we feel in danger. While the theory of whether people have reptilian brains has fallen out of favor, plaintiffs’ attorneys may use this strategy to encourage juries to focus on the alleged acts of the defendant instead of the facts around the plaintiff’s injury.


There is also an “escalation of claims against health care organizations for failure to train, improper/inappropriate hiring, and breach of contract,” says attorney and mediator Ellen Harmon of USA&M, who mediates medical malpractice cases. Harmon also notes that parties may have unreasonably high expectations on the plaintiff’s side, and a reluctance to identify and acknowledge risks on the defendant’s side.


Challenges for Plaintiffs’ Attorneys

Medical malpractice plaintiffs’ attorneys face several challenges with these cases, including the cost of proving the case. “Some cases are so costly to prove or develop that the financial benefit of filing suit does not exceed the costs of working the case up for trial,” says Hunsaker. “This is particularly true in Missouri, which has caps and also allows the court to time future medical payments in cases where verdicts have been returned in favor of the plaintiff.”


“Post-COVID delays in the court systems still persist, creating hurdles to getting to trial,” adds Harmon. And plaintiffs who start out with extremely high demands, or expectations about the value of their cases, can lead to dissatisfaction and reluctance to settle on the part of the plaintiffs.

Challenges for Defense Attorneys

Defense attorneys face their own set of issues. Challenges can include having to address, “electronic medical records which can create a false or misleading picture of the care provided (some records pick up histories from past visits with other providers which run counter to the history provided to a particular physician); tactics to cast medical providers or hospitals as uncaring, inattentive or driven solely by profit; unrealistic and overly generous life care plans; and the advent of large corporate practices of medicine which are vastly different than dealing with what used to be smaller, more traditional stand-alone practices,” says Hunsaker. Physicians may also be reluctant to settle cases because those settlements will be reported to the National Practitioner Databank, and most physicians, particularly those in the early part of their careers, wish to avoid a “negative data bank report.”


Mediation: An Appealing Option

Considering the challenges faced by both plaintiffs and defendants, mediation can provide a setting for parties to realistically appraise their respective cases, says Hunsaker. “The majority of cases going to trial still result in defense verdicts. So, there is (and has always been) considerable risk to plaintiffs bringing such cases,” he says. “However, a medical provider needs to know that in today’s world, risks are heightened with more ‘nuclear verdicts’ which most individual policies will not come close to covering.


“Mediation affords the defendant the opportunity to hear from a neutral why there are merits to settlement for medical malpractice cases, despite data bank reporting, impact on insurance rates, and credentialing challenges,” he adds. “The earlier that process begins, the better.”


Mediation is a smart option for medical malpractice cases — particularly those with numerous defendants and those that involve catastrophic injuries or the death of a patient — because the more complex the case, the more time-consuming and expensive it is to try. This is further complicated by the COVID-caused court delays.


Finally, there’s the emotional cost to the parties. “The emotional turmoil for both sides will continue as long as the litigation is unresolved, and the outcome is yet uncertain,” says Harmon. “Mediation can provide swift and certain resolution for all, along with mitigating litigation costs.”

The Final Analysis

Regardless of whether a case settles at mediation, the process can help both or all parties evaluate the risk of proceeding to trial versus settling. “Having tried many medical malpractice cases for physicians, I am struck by the difference in saying ‘I will not settle because my case is defensible’ versus having to sit before a jury for two or more weeks while being assailed by a plaintiff who has significant damages and whose liability theory is supported by other physicians,” says Hunsaker. “The more that parties can understand risk and the unpredictability of jury outcomes, the better. In the end, I want my client to understand that even if everything goes the way I hope it should at trial, it is impossible to predict how a jury will decide liability and damages questions.”




Miles Mediation & Arbitration is shaping the alternative dispute resolution (ADR) industry with our comprehensive professional services model that combines the expertise of our highly skilled, diverse panel of neutrals with an unparalleled level of client support to guide and empower parties to fair, timely, and cost-effective resolution regardless of case size, specialization, or complexity. For more information, please call 888-305-3553 or email