Togstad v. Vesely, Otto, Miller & Keefe case brief

Togstad v. Vesely, Otto, Miller & Keefe case brief summary (1980)

Facts: 

-Mr. Togstad was paralyzed by the negligent doctors. 

-Mrs. Togstad approached Miller seeking legal advice on her malpractice case. 

-After a standard interview, Miller stated that he didn’t think that she had a case. 

-However, Miller never had ordered medical records, nor did he advise her of the two-year statute of limitations. 

-Mrs. Togstad relied on Miller’s advice, and he did not approach another attorney until the statute of limitations had run.

Procedural Posture: The lower court found Miller liable for malpractice, and he appealed.

Issue: Is Miller is liable for malpractice for his failure to advise Mrs. Togstad properly?

Holding: Yes, he is liable for malpractice

Analysis:
In a legal malpractice action, four elements must be shown: 

1) that an attorney-client relationship existed, 

2) that the defendant acted negligently or in breach of contract, 

3) “but for” causation, and 

4) damages. 

-It is settled law that where a person seeks the “legal advice” of an attorney, and the attorney renders a “professional opinion”, an attorney client relationship is established. -Based on expert testimony, Miller failed to perform the minimal medical records research that would be required to render advice of this sort. 

-Miller was also negligent in failing to advise Mrs. Togstad of the 2-year medical malpractice statute of limitations because a prudent lawyer would have done so. 

-There is further sufficient evidence to show that Mrs. Togstad would have been successful had the case gone to trial. 

-Thus, Miller is liable for malpractice.

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