Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)
Author: Anonymous

Facts: Atty Miller, and associate of Df firm, represented the respondents, involved in a medical malpractice suit.  The respondent’s diagnosis was an anuerism and a clamp was inserted over the artery and gradually closed.  Upon discovery that the clamp was stopping the flow of blood to the brain, causing paralysis, by a nurse, the staff failed to open or adjust the clamp in time, and the respondent was left paralyzed in his right arm and leg, and unable to speak.  Respondent’s wife met with the atty and described everything that happened at the hospital. Miller informed her that he did not believe there was a legal case.  Relying on that information she did not discuss the case with another atty until a year later, and the statute of limitations had expired.

Issue: Whether the attorney and law firm committed legal malpractice during the initial consultation with the respondents informing them that they did not have a legal claim and not providing competent legal advise?

Holding: Yes.

Procedure: Jury verdict for respondents, $610,000 + $39,000. Affirmed.

Rule: Legal malpractice consists of 1) an atty-client relationship existed; 2) the Df acted negligently or in breach of contract; 3) such acts were the proximate cause of the Pl’s damages; 4) but for the Df’s conduct the Pls would have been successful in their original claim.

Rationale: Mrs Togstad went to Miller for legal advise, was told there wasn’t a claim and relied on this advise in failing to pursue the claim.  Thus an atty-client relationship existed. Based on the testimony of the Df’s own witness ordinary care and diligence required Miller to inform the respondents of the statute of limitations, and it was reasonable for the jury to determine he acted negligently in failing to so inform the respondents.  The record contains sufficient evidence that Miller failed to perform the minimal research that an ordinary prudent attorney would do before rendering legal advise in a case of this nature.  When Mrs. Togstad contacted the other atty a year after speaking with Miller, only three days maximum would have remained on the limitation period, Miller was the direct cause of the plaintiff’s damages.  The evidence shows that but for Miller’s negligence the respondent’s would have been successful in their claim of medical malpractice.  The jury should not have been instructed to reduce any award by the amount of a hypothetical contingency fee.

Pl : Mrs. Togstad went to Miller for legal advice, was told there wasn’t a case, and relied upon that advise in failing to pursue the claim, and Miller did not urge her to seek advise from another atty, or that he lacked expertise in the medical malpractice area.

Df: The evidence fails to show that Miller acted negligently in assessing the merits of the case, and error in judgment does not rise to legal malpractice, therefore a new trial should issue on ground that the judge failed to inform the jury that failure to inform the respondents of the two-year limitation does not constitute negligence.