GENERAL PRACTICE
LEGAL MALPRACTICE IN LIGHT OF TOGSTAD ―
LIABILITY FOR CURBSTONE OPINIONS?
By
Michael J. Hoover, DirectorFtn 1
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (November
1980)
INTRODUCTION
On April, 11, 1980,
the Minnesota Supreme Court decided the celebrated legal malpractice case of Togstad
v. Vesely, Otto, Miller & Keefe.Ftn 2 The Togstad decision, holding the
defendant lawyers negligent in improperly advising a wife about her husband’s
alleged medical malpractice claim, has received considerable attention. The purpose of this article is to analyze Togstad
and provide practical suggestions for guarding against its consequence.
FACTS OF THE TOGSTAD CASE
The
Alleged Medical Malpractice
John Togstad was
admitted to a hospital on August 16, 1971, where tests disclosed that his
severe headaches were caused by a large aneurysm. A clamp was surgically implanted on August 27, 1971, in Mr.
Togstad’s neck to allow the gradual closure of the artery.Ftn 3
One of the risks
associated with the procedure is that paralysis may result if the brain does
not receive an adequate flow of blood.
If the blood supply becomes so low as to endanger the patient’s health,
the clamp can be adjusted to establish proper blood circulation.Ftn 4
Two days after
implantation, a nurse observed that Mr. Togstad could neither speak nor move,
and called a resident physician, who did not adjust the clamp. Mr. Togstad’s primary physician arrived an
hour later and promptly opened the clamp, but Togstad suffered paralysis in his
right arm and leg and is unable to speak.Ftn 5
Mrs. Togstad became
suspicious about her husband’s treatment “due to the conduct and statements of
the hospital nurses shortly after the paralysis occurred”.Ftn 6
She noticed that nurses were “’upset and crying”’ and that her husband’s
condition “’was a topic of conversation”’.Ftn 7 One
nurse told her that Mr. Togstad was fine at 2:00 A.M., but when she returned at
3:00 A.M., he was unable to move or speak.Ftn 8
Consultation
with the Law Firm
About fourteen months
after her husband’s hospitalization, Mrs. Togstad met with Attorney Jerre
Miller about her husband’s condition.
The appointment was made by Mr. Togstad’s former work supervisor who
knew the defendant through a local luncheon club. Neither Mr. nor Mrs. Togstad had any prior contact with the firm.Ftn 9
Mrs. Togstad testified
that she went to the law firm for legal advice “’what to do, where shall we go
from here?”’Ftn 10 She said that she told the defendant “’everything
that happened at the hospital”’, and “’about the procedure and what was
undertaken, what was done, and what happended.’”Ftn 11 She brought no records with her, but the defendant took notes and
asked questions during the 45-minute meeting.
At its conclusion, Mrs. Togstad said Miller advised her “’he did not
think we had a legal case, however, he was going to discuss this with his
partner.”’Ftn 12
When she did not hear
from the firm after a few days, she decided that they had concluded there
wasn’t a case. There were no fee
arrangements, no medical authorizations, and Mrs. Togstad was not billed for
the interview.Ftn 13
Although the
defendants did agree with most of the basic facts alleged by Mrs. Togstad,
there were some significant differences.
While the plaintiff alleged that she was seeking the legal opinion of
the defendant about whether there was a viable claim, the defendant argued that
he was merely asked whether “’she had a case that our firm would be interested
in undertaking.’”Ftn 14 At trial, however, the defendant did testify
that Mrs. Togstad was “’there to see whether or not she had a case and whether
the firm would accept it.’”Ftn 15
The defendant also
claimed that he told 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.’”Ftn 16 This was denied by Mrs. Togstad, as was the
defendant’s claim that he advised her that his firm did not have expertise in
medical malpractice.Ftn 17
Mrs. Togstad did not
consult another attorney until one year after she talked to the defendant
because of her claimed reliance upon the defendant’s “’legal advice”’ that they
“’did not have a case”’.Ftn 18
Expert
Testimony
At the trial, each of
the parties called expert witnesses.
The plaintiffs’ expert testified 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.’”Ftn 19
One of the defendants’
experts testified that when an attorney is asked whether he will take a case,
his only responsibility in refusing it “’is to so inform the party.’”Ftn 20 He did say, however, that if an attorney is
asked a legal opinion on the merits of a malpractice claim, he should check
hospital records and consult with an expert before giving an opinion.Ftn 21
The second defense
expert testified that when a person consults him about a medical malpractice
action, he has to make a decision “’as to whether or not there probably is or
probably is not, based upon that information, medical malpractice.’”Ftn 22 If there is not, he continued, he would then
inform the client but would never render a “’categorical”’ opinion.Ftn 23 He did acknowledge that if he were consulted
for a legal opinion regarding medical malpractice fourteen months after the
questioned incident, “’ordinary care and diligence’” would prompt him to tell
the party about the two-year statute of limitations.Ftn 24
Trial
Result
The jury submitted a
special verdict finding the hospital and the doctor negligent and finding that
the doctor’s negligence was a direct cause of Mr. Togstad’s injuries. The jury also found an attorney/client
relationship between Mrs. Togstad and the defendant, that the defendant was
negligent in rendering advice regarding the possible claims of the Togstads,
and but for his negligence, they would have been successful in their action
against the doctor. The jury also found
that the Togstads were not negligent in pursuing their claims against the
doctor. Mr. Togstad was awarded
$610,500, and Mrs. Togstad $39,000.Ftn 25 The Supreme Court affirmed the denial of a
motion for judgment notwithstanding the verdict.
THE LEGAL MALPRACTICE ISSUES ON APPEAL
The Court noted that
in a legal malpractice action, there are four necessary elements:
1.
An attorney/client
relationship;
2.
Negligence by the
defendant or breach of contract;
3.
The negligence or breach
of contract must be the approximate cause of the plaintiffs’ damages; and
4.
But for the defendant’s
conduct, the plaintiffs would have been successful in the prosecution of their
claim.Ftn 26
Either tort or
contract may serve as a basis for legal malpractice liability. In fact, some commentators have characterized
malpractice suits as being neither in contract nor in tort, but as lying in a
“borderland” area between the two.Ftn 27
The Court observed
that many of its recent legal malpractice decisions have analyzed the
attorney/client considerations in contractual terms. Under the contract theory, the basis of liability is the reliance
by the recipient on the advice given.
In Togstad, the
trial court applied a contract analysis in ruling on the attorney/client
relationship question. One statement of
the contract analysis is as follows:
“Generally speaking, the
relation of attorney and client is a matter of contract . . . A valid offer and acceptance will constitute
the relation of attorney and client.
Thus, the contract of employment, in general, consists of an offer or
request by the client and an acceptance or assent by the attorney . . . Formality is not an essential element of the
employment of an attorney. The contract
may be express or implied and it is sufficient that the advice
and assistance of the attorney is sought and received, in matters pertinent to
his profession. An acceptance of the
relation is implied on the part of the attorney from his acting in behalf of
his client in pursuance of a request by the latter. (Emphasis supplied.)Ftn 28
The Court noted that
one law review comment suggested that the proper analysis in Togstad was
to apply principles, of negligence.
Under such an analysis, liability arises if the defendant renders legal
advice under circumstances which make it reasonably foreseeable to him that if
such advice is negligently given, the individual receiving it may be injured.Ftn 29
After discussing the
alternative theories of liability, the Court refused to base its decision on
either analysis, but instead held that “under either theory the evidence shows
that a lawyer/client relationship is present here.”Ftn 30
REACTION TO TOGSTAD
Togstad has been greeted with apprehension by the bar. It has also been the subject of considerable
commentary.Ftn 31 The decision even evoked an unusual
expression of sympathy for the profession from a lay source, who said he would
be “worried sick” if he were a member of a Minnesota professional partnership,
and added:
“How can we expect
professional people to serve the public prudently, wisely and fully
professionally with that kind of an ax hanging over their heads?
The alternative of course
is to load up the firm with vast insurance coverages the cost of which,
inevitably, must be passed on to the public in the form of higher fees and to
conduct the practice with an exhaustive and costly pursuit of and study into
every possible contingency that might develop . . . a kind of defensive sort of
practice in the face of the malpractice suit threat.
And we wonder why
professional service costs keep rising.”Ftn 32
The remainder of this
article will focus on preventing malpractice in Togstad situations.
Rejecting
the Case on the Merits
One commentator, in an
article written prior to the Supreme Court’s decision in Togstad, described
its significance as follows:
“The fundamental
proposition underscored by the Minnesota case is that a lawyer cannot reject
any case brought to him for consideration by a potential client on the basis of
the lawyer’s judgment as to the merits of the case unless the lawyer
makes a careful investigation of the facts and the legal issues involved. If the plaintiff’s position in the Minnesota
case is sustained, it will be forcibly brought home that any ‘undertaking’ to
advise a party professionally brings into play all of the lawyer’s professional
responsibility to a client.”Ftn 33
In Togstad, the
posture of the case required an assumption by the Court that Mrs. Togstad
sought and received legal advice from the defendant. In rendering the advice, the defendant appeared to the client to
be rejecting the case on the merits.
According to
plaintiffs’ experts, consultation with an expert and review of medical records
is an absolute minimum which should be performed by the attorney before an
opinion on the merits is rendered.Ftn 34 The general rule, as stated by the Court, is
that an attorney must “perform the minimal research that an ordinarily prudent
attorney would do before rendering legal advice.”Ftn 35
It thus appears from Togstad
that in any situation where an attorney undertakes to render an opinion on the
merits of a case, he will be required to do more or less, depending upon the
exact nature of the case. In a
commercial case, where the facts may be clear, legal research may be
sufficient. In other cases, both
factual investigation and legal research may be required. In other cases, such as medical malpractice
cases, an attorney may need to go even further, and consult with experts in the
particular field. In any event, ‘the
attorney must’ perform the minimal acts which a reasonably prudent lawyer would
perform before rendering an opinion on the merits of the case.
Rejecting
the Case Other than on the Merits
In Togstad, the
client and the attorney differed on the nature of the opinion rendered by the
attorney. The client felt, the jury
found, and the Supreme Court assumed, that the lawyer rendered legal advice
concerning the merits of the case. The
attorney argued that the advice given was merely concerning whether the case
was one which the firm was interested in accepting.
There are, of course,
many settings in which an attorney may decline proffered employment and in
which the refusal has nothing to do with the merits of the case. There may be ethical conflicts of interest,
the attorney may not do the kind of work involved in the offered case, the
attorney may be too busy to handle the matter, or he may simply desire to avoid
the case without having a specific reason.
One of the defendant’s
experts testified that when a lawyer refuses a case, his only duty is to inform
the client if the refusal is for reasons other than the merits of the
case. It appears from Togstad, however,
that more is required. It has been
suggested that if a case is rejected other than on the merits, the fact that it
is so rejected must be communicated to the client.Ftn 36
It has also been
suggested that besides communicating the exact reasons for the rejection of the
case, if it is rejected other than on the merits, the person should be advised
to consult another attorney, and should be advised about the statute of
limitations which applies to the case, or “at a minimum, that the passage of
time may cut off the right to bring the case.”Ftn 37
The
Necessity of a Writing
One commentator has
stated as follows:
Finally, there is no
escaping the clear message of the Minnesota case, which is that in all events a
letter must be written.”Ftn 38
The initial reaction
of many practitioners to this statement must inevitably be “why?”. Secondary considerations must be to whom
such writing should be sent, and what they should contain.
The differences in the
testimony of the client and attorney in Togstad clearly indicate the
primary reason for sending a letter. A
carefully drafted letter may be both a source of advice to the recipient as
well as a record of what transpired between the recipient and the
attorney. In cases where the
recollection of the attorney and the recipient differ, the letter may resolve
the conflict.
To whom should such
letters be sent? Office visitors and
drop-ins? Yes. Telephone callers? Probably. Curbstone
contacts? Possibly. In short, the letter should be sent to
anyone to whom statements were made which could reasonably be interpreted as
legal advice upon which a reasonable person might rely, or as a result of
which, if such statements were made negligently, the individual receiving them
might be injured.Ftn 39
In all cases where
employment is declined, the client should be advised of the reason for
declining the employment. In other
words, it should be clear to the client whether the decision to reject the case
is based upon the attorney’s opinion about its merits or for other
reasons. Whatever the reasons for
declining the case, it also seems advisable to mention the applicable statute
of limitations. In mentioning the
statute of limitations, the client should clearly be advised that once the
deadline passes, it is likely that no lawsuit will ever be possible. Where there are questions about the statute
of limitations, it may be best to discuss those briefly, and indicate to the
client the “conservative” estimate of when the statute expires.
It is always desirable
to suggest to a person whose case has been rejected, for whatever reason, that
another attorney may or should be consulted.
As desirable as it is in cases where the case is rejected on the merits,
such as suggestion is crucial in cases where the attorney has rejected the case
for reasons other than its merits.
While the foregoing
would seem to be minimal ingredients of rejection letter, other information may
be desirable. It may be desirable for
the lawyer, in summary form, to state the times and content of the recipient’s
conversations and contacts with the lawyer.
If the lawyer is rejecting the case on the merits, a statement of the
facts as he understands them and a summary of his research, consultations, and
investigation is desirable.
It should be noted
that the rejection of a case is not the only event in which a letter is
desirable:
“The thought is that every
new client contact should be followed up promptly with a letter which describes
exactly what the lawyer has undertaken to do.
This letter would include reference to significant follow-up actions to
be taken by the client; any limitations on the lawyer’s undertaking; major
factual assumptions; and reference to fee and cost arrangements.”Ftn 40
CONCLUSION
Togstad has real ramifications for Minnesota attorneys. Before rendering an opinion rejecting a case
on its merits, an attorney may be required to do legal research, factual
investigation, and consult with experts.
If the case is rejected other than on its merits, the attorney may still
be required to advise the rejected client about the statute of limitations and
to suggest that another attorney be consulted promptly. In all cases of rejection, and indeed in
cases of limited acceptance, the attorney should formally communicate his
decisions, their bases, and the minimal advice required by Togstad to
the clients in writing.
To some, these
suggestions, especially the formal written requirement, may seem
burdensome. The essential common
ingredients, if not the specific contents, of rejection letters should,
however, be fairly easy to standardize in a law office. The alternative, as the defendants in Togstad
found, is a substantial pecuniary penalty.
FOOTNOTES
4 Id.
5 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id. at 691.
15 Id.
16 Id.
18 Id. at 690.
20 Id. at 692.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id; See also Christy v. Saliterman, 288 Minn. 144, 179 N.W. 2d 288 (1970).
27 Prosser, The Borderland of Tort and Contract, and Selected Topics on the Law of Torts, 380 (1954).
28 7 C.J.S., Attorney and Client, §65.
32 Tilton, “Something Else to Worry About”, West St. Paul Sun (Aug. 6, 1980).
35 Id. at 692.
“(c) A lawyer may limit the nature and purposes of the representation provided to a client if: (1) the client’s interest will not be materially impaired by the limitation; and (2) the limitation is adequately disclosed to the client before the representation is undertaken.”
Arguably, to the extent that an attorney has “undertaken” to reject a case on the merits, his responsibility to the client cannot be limited. If he desires to limit his liability in an “undertaking” to reject a case other than on the merits, it would seem that he must make adequate disclosure to the client.
38 Id.