Law School Case Brief
Togstad v. Vesely, Otto, Miller & Keefe - 291 N.W.2d 686 (Minn. 1980)
In a legal malpractice action four elements must be shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract; (3) that such acts were the proximate cause of the plaintiffs' damages; (4) that but for defendant's conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim.
Plaintiff-respondent John Togstad began to experience severe headaches. It was discovered that the headaches were caused by a large aneurism on the left internal carotid artery. The attending physician, Dr. Paul Blake, a neurological surgeon, treated the problem by applying a Selverstone clamp to the left common carotid artery. The greatest risk associated with this procedure is that the patient may become paralyzed if the brain does not receive an adequate flow of blood. Two weeks after the surgery, a nurse observed that Togstad was unable to speak or move. At the time, the clamp was one-half (50%) closed. Upon discovering Togstad's condition, the nurse called a resident physician, who did not adjust the clamp. Dr. Blake was also immediately informed of Togstad's condition and arrived about an hour later, at which time he opened the clamp. Togstad became severely paralyzed in his right arm and leg, and unable to speak. Mrs. Togstad had become suspicious of the circumstances surrounding her husband's tragic condition due to the conduct and statements of the hospital nurses shortly after the paralysis occurred. She then sought the advice of an attorney on medical malpractice suit. The attorney had not told her his firm did not have expertise in the medical malpractice field, urged her to see another attorney, or related to her that the statute of limitations for medical malpractice actions was two years. Thus, she eventually filed an action for legal malpractice against defendants attorney and the law firm. The trial court found the attorney and the law office to be negligent, which resulted in damages to the Togstads. The trial court awarded damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the amount of $39,000. The trial court denied defendants' motion for judgment notwithstanding the verdict or, alternatively, for a new trial. Defendants appealed.
Did the trial court correctly rule in favor of legal malpractice plaintiffs, who contended that but for defendant attorney's negligent conduct they would have been successful in the prosecution of their medical malpractice claim?
The Supreme Court of Minnesota affirmed the trial court's denial of appellant attorney and law firm's motions. The Court found that there was sufficient evidence in the record that established that an attorney-client relationship existed, that the attorney acted negligently or in breach of contract, that such acts were the proximate cause of respondent-plaintiffs' damages, and that but for the attorney's conduct respondents would have been successful in the prosecution of their medical malpractice claim. A jury could properly find that Mrs. Togstad sought and received legal advice from the attorney under circumstances which made it reasonably foreseeable to the attorney that Mrs. Togstad would be injured if the advice were negligently given. Thus, under either a tort or contract analysis, there was sufficient evidence in the record to support the existence of an attorney-client relationship. The Court also held that appellants were not entitled to a new trial under Minn. R. Civ. P. 59.01(5), because the trial court acted within its discretionary authority in ruling that respondents' damage award was not excessive. Appellants were not entitled to a reduction of that award for a hypothetical contingency fee.
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