291 N.W.2d 686 (Minn. 1980)
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.1 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.2
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.3 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.4
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.5 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. The meeting 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.6
Miller’s testimony was different in some respects from that of Mrs. Togstad. According to Miller, Mrs. Togstad described the hospital incident, including the conduct of the nurses. 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.”7 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.”8 He stated that she ought to do so promptly.9 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.10 Mrs. Togstad did not consult another attorney until one year after she talked to Miller.11 This case was submitted to the jury by way of a special verdict form in Hennepin County District Court. The jury found 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, and awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.12 Defendants (Miller and his law firm) appealed to the Supreme Court of Minnesota from the denial of their motion for judgment notwithstanding the verdict or, alternatively, for a new trial.13
Whether the trial court erred in denying defendants’ motion for judgment notwithstanding the jury verdict?14
In a legal malpractice action of the type involved here, four elements must be shown. First, an attorney-client relationship existed. Second, the defendant acted negligently or in breach of contract. Third, such acts were the proximate cause of the plaintiffs’ damages. Fourth, but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim.15
No. The evidence establishes each element when applied to the specific facts.16 An attorney-client relationship existed because Mrs. Togstad sought legal advice from Miller regarding her husband’s condition after describing the hospital events in detail during the 45-minute to one-hour meeting arranged by Ted Bucholz.17 Miller rendered an opinion that there was no case the firm would undertake.18 Mrs. Togstad relied on that advice by not consulting another attorney for a year.19
Miller acted negligently by failing to request medical authorizations, review hospital records, or consult an expert before giving the opinion, as required by the minimum standards testified to by Kenneth Green and John McNulty.20 Miller’s negligence proximately caused the damages because the two-year statute of limitations for the medical malpractice claim against Dr. Blake had run by the time Mrs. Togstad sought other counsel.21 But for the negligence the plaintiffs would have succeeded as shown by Dr. Ward Woods’s testimony that Dr. Blake’s negligence caused the paralysis.22
The trial court did not err in denying the motion for judgment notwithstanding the verdict because the jury’s findings on all four elements of legal malpractice are supported by the record.23
Whether the evidence reasonably supports the jury’s award of damages to Mrs. Togstad in the amount of $39,000?24
The reasonableness of a jury’s damage award is largely left to the discretion of the judge who presided at trial and, accordingly, the district court’s ruling on this question will not be disturbed unless a clear abuse of discretion is shown.25 A trial judge’s decision regarding the excessiveness of damages will not be interfered with on appeal unless the failure to do so would be shocking and result in a plain injustice.26
No. The award for loss of consortium is supported when applied to the facts.27 Mr. Togstad became impotent due to the paralysis from the August 29, 1971 incident at Methodist Hospital, preventing sexual intercourse with Mrs. Togstad thereafter.28 The injuries also precipitated the dissolution of the marriage in July 1974.29 Consortium includes rights to comfort, companionship, and sexual relationship.30
The evidence of these losses after the clamp procedure and resulting paralysis justifies the $39,000 award within the trial court’s discretion.31
The evidence reasonably supports the jury’s award of $39,000 in damages to Mrs. Togstad.32
Whether plaintiffs’ damages should be reduced by the amount of attorney fees they would have paid had Miller successfully prosecuted the action against Dr. Blake?33
A reduction for hypothetical attorney fees is unwarranted because of the expense incurred by the plaintiff in bringing an action against the attorney for legal malpractice.34
No. The facts show that plaintiffs incurred expenses in retaining counsel to establish that Miller failed to prosecute a recoverable action against Dr. Blake.35 Reducing the damages by the contingency fee Miller would have earned would ignore those litigation costs against the defendants, consistent with the approach that declines to offset the hypothetical fee.36
Plaintiffs’ damages should not be reduced by the amount of attorney fees they would have paid had Miller successfully prosecuted the action against Dr. Blake.37
Whether the comments of plaintiffs’ counsel to the jury regarding the special verdict were improper and, if so, whether defendants were entitled to a new trial?38
Rule 49.01(1) provides that neither the court nor counsel shall inform the jury of the effect of its answers on the outcome of the case except as provided in Rule 49.01(2) for comparative negligence percentage questions.39 The question of whether an alleged violation entitles defendants to a new trial is a matter within the sound discretion of the trial court.40
No. The comments of plaintiffs’ counsel referred to the impact of the negligence apportionment answers and possibly the direct cause answers on the special verdict form submitted in Hennepin County District Court.41 Although the reference to causation may have been ambiguous under the rule, the trial court concluded within its discretion that the comments did not require a new trial given the ambiguous nature of the statements.42
The comments were not sufficiently improper to entitle defendants to a new trial.43