7.11. Reading: Togstad v. Vesley, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)

Reading Guide

The problem here. This case deals with a nightmarish scenario for a lawyer. The lawyer thought he talked to a prospective client and turned down the case. The client thinks that the lawyer provided the client with legal advice. As you read this case, be sure to pay particular attention to the interactions between the lawyer and the client. Try to put yourself in the role of the lawyer and the client.

Issues:
– Be sure to note the elements of Togstad’s legal malpractice claim and how each element is satisfied.
– Why did the lawyer’s “attorney judgment rule” defense fail?

Togstad v. Vesley, Otto, Miller & Keefe

Supreme Court of Minnesota, 1980
291 N.W.2d 686

PER CURIAM.

This is an appeal by the defendants from a judgment of the Hennepin County District Court involving an action for legal malpractice. The jury found that the defendant attorney Jerre Miller was negligent and that, as a direct result of such negligence, plaintiff John Togstad sustained damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the amount of $39,000. Defendants (Miller and his law firm) appeal to this court from the denial of their motion for judgment notwithstanding the verdict or, alternatively, for a new trial. We affirm.

Background of the Togstad’s Medical Malpractice Claim

In August 1971, John Togstad began to experience severe headaches and on August 16, 1971, was admitted to Methodist Hospital where tests disclosed 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 clamp was surgically implanted on August 27, 1971, in Togstad’s neck to allow the gradual closure of the artery over a period of days.

The treatment was designed to eventually cut off the blood supply through the artery and thus relieve the pressure on the aneurism, allowing the aneurism to heal. It was anticipated that other arteries, as well as the brain’s collateral or cross-arterial system would supply the required blood to the portion of the brain which would ordinarily have been provided by the left 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. In the event the supply of blood becomes so low as to endanger the health of the patient, the adjustable clamp can be opened to establish the proper blood circulation.

In the early morning hours of August 29, 1971, 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 is now severely paralyzed in his right arm and leg, and is unable to speak.

Plaintiffs’ expert, Dr. Ward Woods, testified that Togstad’s paralysis and loss of speech was due to a lack of blood supply to his brain. Dr. Woods stated that the inadequate blood flow resulted from the clamp being 50% closed and that the negligence of Dr. Blake and the hospital precluded the clamp’s being opened in time to avoid permanent brain damage. Specifically, Dr. Woods claimed that Dr. Blake and the hospital were negligent for (1) failing to place the patient in the intensive care unit or to have a special nurse conduct certain neurological tests every half-hour; (2) failing to write adequate orders; (3) failing to open the clamp immediately upon discovering that the patient was unable to speak; and (4) the absence of personnel capable of opening the clamp.

Dr. Blake and defendants’ expert witness, Dr. Shelly Chou, testified that Togstad’s condition was caused by blood clots going up the carotid artery to the brain. They both alleged that the blood clots were not a result of the Selverstone clamp procedure. In addition, they stated that the clamp must be about 90% closed before there will be a slowing of the blood supply through the carotid artery to the brain. Thus, according to Drs. Blake and Chou, when the clamp is 50% closed there is no effect on the blood flow to the brain.

Togstad, the Prospective Client, Goes to a Lawyer (Miller)

About 14 months after her husband’s hospitalization began, plaintiff Joan Togstad met with attorney Jerre Miller regarding her husband’s condition. Neither she nor her husband was personally acquainted with Miller or his law firm prior to that time. John Togstad’s former work supervisor, Ted Bucholz, made the appointment and accompanied Mrs. Togstad to Miller’s office. Bucholz was present when Mrs. Togstad and Miller discussed the case.[1]

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. One nurse told Mrs. Togstad that she had checked Mr. Togstad at 2 a. m. and he was fine; that when she returned at 3 a. m., by mistake, to give him someone else’s medication, he was unable to move or speak; and that if she hadn’t accidentally entered the room no one would have discovered his condition until morning. Mrs. Togstad also noticed that the other nurses were upset and crying, and that Mr. Togstad’s condition was a topic of conversation.

Mrs. Togstad testified that she told Miller “everything that happened at the hospital,” including the nurses’ statements and conduct which had raised a question in her mind. She stated that she “believed” she had told Miller “about the procedure and what was undertaken, what was done, and what happened.” She brought no records with her. Miller took notes and asked questions during the meeting, which lasted 45 minutes to an hour. At its conclusion, according to Mrs. Togstad, Miller said that “he did not think we had a legal case, however, he was going to discuss this with his partner.” She understood that if Miller changed his mind after talking to his partner, he would call her. Mrs. Togstad “gave it” a few days and, since she did not hear from Miller, decided “that they had come to the conclusion that there wasn’t a case.” No fee arrangements were discussed, no medical authorizations were requested, nor was Mrs. Togstad billed for the interview.

The Disputed Conversation

Mrs. Togstad denied that Miller had 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. She did not consult another attorney until one year after she talked to Miller. Mrs. Togstad indicated that she did not confer with another attorney earlier because of her reliance on Miller’s “legal advice” that they “did not have a case.”

On cross-examination, Mrs. Togstad was asked whether she went to Miller’s office “to see if he would take the case of (her) husband * * *.” She replied, “Well, I guess it was to go for legal advice, what to do, where shall we go from here? That is what we went for.” Again in response to defense counsel’s questions, Mrs. Togstad testified as follows:

Q And it was clear to you, was it not, that what was taking place was a preliminary discussion between a prospective client and lawyer as to whether or not they wanted to enter into an attorney-client relationship?

A I am not sure how to answer that. It was for legal advice as to what to do.

Q And Mr. Miller was discussing with you your problem and indicating whether he, as a lawyer, wished to take the case, isn’t that true?

A Yes.

On re-direct examination, Mrs. Togstad acknowledged that when she left Miller’s office she understood that she had been given a “qualified, quality legal opinion that (she and her husband) did not have a malpractice case.”

Miller’s testimony was different in some respects from that of Mrs. Togstad. Like Mrs. Togstad, Miller testified that Mr. Bucholz arranged and was present at the meeting, which lasted about 45 minutes. According to Miller, Mrs. Togstad described the hospital incident, including the conduct of the nurses. He asked her questions, to which she responded. Miller testified that “(t)he only thing I told her (Mrs. Togstad) after we had pretty much finished the conversation was that there was nothing related in her factual circumstances that told me that she had a case that our firm would be interested in undertaking.”

Miller also claimed he related to Mrs. Togstad “that because of the grievous nature of the injuries sustained by her husband, that this was only my opinion and she was encouraged to ask another attorney if she wished for another opinion” and “she ought to do so promptly.” He testified that he informed Mrs. Togstad that his firm “was not engaged as experts” in the area of medical malpractice, and that they associated with the Charles Hvass firm in cases of that nature. Miller stated that at the end of the conference he told Mrs. Togstad that he would consult with Charles Hvass and if Hvass’s opinion differed from his, Miller would so inform her. Miller recollected that he called Hvass a “couple days” later and discussed the case with him. It was Miller’s impression that Hvass thought there was no liability for malpractice in the case. Consequently, Miller did not communicate with Mrs. Togstad further.

On cross-examination, Miller testified as follows:

Q Now, so there is no misunderstanding, and I am reading from your deposition, you understood that she was consulting with you as a lawyer, isn’t that correct?

A That’s correct.

Q That she was seeking legal advice from a professional attorney licensed to practice in this state and in this community?

A I think you and I did have another interpretation or use of the term “Advice”. She was there to see whether or not she had a case and whether the firm would accept it.

Q We have two aspects; number one, your legal opinion concerning liability of a case for malpractice; number two, whether there was or wasn’t liability, whether you would accept it, your firm, two separate elements, right?

A I would say so.

Q Were you asked on page 6 in the deposition, folio 14, “And you understood that she was seeking legal advice at the time that she was in your office, that is correct also, isn’t it?” And did you give this answer, “I don’t want to engage in semantics with you, but my impression was that she and Mr. Bucholz were asking my opinion after having related the incident that I referred to.” The next question, “Your legal opinion?” Your answer, “Yes.” Were those questions asked and were they given?

MR. COLLINS: Objection to this, Your Honor. It is not impeachment.

THE COURT: Overruled.

THE WITNESS: Yes, I gave those answers. Certainly, she was seeking my opinion as an attorney in the sense of whether or not there was a case that the firm would be interested in undertaking.

Establishing the Standard of Care/Breach
in Legal Malpractice Claim

Kenneth Green, a Minneapolis attorney, was called as an expert by plaintiffs. He stated that in rendering legal advice regarding a claim of medical malpractice, the “minimum” an attorney should do would be to request medical authorizations from the client, review the hospital records, and consult with an expert in the field. John McNulty, a Minneapolis attorney, and Charles Hvass testified as experts on behalf of the defendants. McNulty stated that when an attorney is consulted as to whether he will take a case, the lawyer’s only responsibility in refusing it is to so inform the party. He testified, however, that when a lawyer is asked his legal opinion on the merits of a medical malpractice claim, community standards require that the attorney check hospital records and consult with an expert before rendering his opinion.

Hvass stated that he had no recollection of Miller’s calling him in October 1972 relative to the Togstad matter. He testified that:

A * * * when a person comes in to me about a medical malpractice action, based upon what the individual has told me, I have to make a decision as to whether or not there probably is or probably is not, based upon that information, medical malpractice. And if, in my judgment, based upon what the client has told me, there is not medical malpractice, I will so inform the client.

Hvass stated, however, that he would never render a “categorical” opinion. In addition, Hvass acknowledged that if he were consulted for a “legal opinion” regarding medical malpractice and 14 months had expired since the incident in question, “ordinary care and diligence” would require him to inform the party of the two-year statute of limitations applicable to that type of action.

Jury Verdict in Favor of Togstads

This case was submitted to the jury by way of a special verdict form. The jury found that Dr. Blake and the hospital were negligent and that Dr. Blake’s negligence (but not the hospital’s) was a direct cause of the injuries sustained by John Togstad; that there was an attorney-client contractual relationship between Mrs. Togstad and Miller; that Miller was negligent in rendering advice regarding the possible claims of Mr. and Mrs. Togstad; that, but for Miller’s negligence, plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake; and that neither Mr. nor Mrs. Togstad was negligent in pursuing their claims against Dr. Blake. The jury awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.

Elements of Legal Malpractice Claim

In a legal malpractice action of the type involved here, 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. …

[W]e conclude that … the evidence shows that a lawyer-client relationship is present here. The thrust of Mrs. Togstad’s testimony is that she went to Miller for legal advice, was told there wasn’t a case, and relied upon this advice in failing to pursue the claim for medical malpractice. In addition, according to Mrs. Togstad, Miller did not qualify his legal opinion by urging her to seek advice from another attorney, nor did Miller inform her that he lacked expertise in the medical malpractice area. Assuming this testimony is true, as this court must do…. we believe a jury could properly find that Mrs. Togstad sought and received legal advice from Miller under circumstances which made it reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given. Thus, under either a tort or contract analysis, there is sufficient evidence in the record to support the existence of an attorney-client relationship.

Lawyer Defense: Attorney Judgment Rule

Defendants argue that even if an attorney-client relationship was established the evidence fails to show that Miller acted negligently in assessing the merits of the Togstads’ case. They appear to contend that, at most, Miller was guilty of an error in judgment which does not give rise to legal malpractice. However, this case does not involve a mere error of judgment. The gist of plaintiffs’ claim is that Miller failed to perform the minimal research that an ordinarily prudent attorney would do before rendering legal advice in a case of this nature. The record, through the testimony of Kenneth Green and John McNulty, contains sufficient evidence to support plaintiffs’ position.

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Legal Malpractice: Proximate Cause

There is also sufficient evidence in the record establishing that, but for Miller’s negligence, plaintiffs would have been successful in prosecuting their medical malpractice claim. Dr. Woods, in no uncertain terms, concluded that Mr. Togstad’s injuries were caused by the medical malpractice of Dr. Blake. Defendants’ expert testimony to the contrary was obviously not believed by the jury. Thus, the jury reasonably found that had plaintiff’s medical malpractice action been properly brought, plaintiffs would have recovered.

Based on the foregoing, we hold that the jury’s findings are adequately supported by the record. Accordingly, we uphold the trial court’s denial of defendants’ motion for judgment notwithstanding the jury verdict.

Affirmed.

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[1] Bucholz, who knew Miller through a local luncheon club, died prior to the trial of the instant action.