Nielson v. Eisenhower & Carlson
| Decision Date | 03 March 2000 |
| Docket Number | No. 23780-6-II.,23780-6-II. |
| Citation | 100 Wash.App. 584,999 P.2d 42 |
| Court | Washington Court of Appeals |
| Parties | Christina NIELSON, Appellant, v. EISENHOWER & CARLSON, a partnership, and Ronald A. Roberts and Jane Doe Roberts, husband and wife, Respondents. |
Stephania Camp Denton, Bruce Winchell, Mills Meyers Swartling, Seattle, for Respondents.
Carl A. Taylor Lopez, Lopez & Fantel, Seattle, for Appellant.
Brad and Stacey Nielson, on behalf of their daughter Christina Nielson, appeal a summary judgment dismissal of their legal malpractice claim against Ronald A. Roberts and his law firm, Eisenhower & Carlson. The malpractice suit was based upon the Nielsons' settlement in an underlying federal claim against the government for 85 percent of the verdict to avoid the risk of appeal by the government based upon a claimed failure to file within the statute of limitations. We hold that the test to be applied in legal malpractice cases is a "but for" test, using traditional principles of proximate cause; that is, but for the negligence of the lawyer, would the case have been successful. Because the test here involved an analysis of appellate procedure as to whether an appeal by the government would have been successful based upon failure to file within the statute of limitations, a judge, not a jury, appropriately decided the issue. As well, our review is whether the Ninth Circuit, using the "clearly erroneous test," would have affirmed the trial court's finding that the matter was filed within the statute of limitations. We hold that the Ninth Circuit would have affirmed the trial court's findings. Thus, the erroneous advice about the length of the statute of limitations was not the proximate cause of the settlement of less than the full amount of the verdict in federal district court against Madigan Hospital. We affirm.
Christina Nielson was born on July 21, 1989, at Madigan Army Medical Center.1 The personnel at Madigan failed to properly and timely assess and treat Christina. These delays at Madigan were a departure from the applicable standard of care and caused Christina to suffer permanent brain damage. Early on, the concern was over damage done to Christina's heart; her parents were not aware of any brain injury.
Following a heart surgery, Christina was diagnosed as probably having DiGeorges syndrome, a genetic condition that could affect the brain and immune system. The doctor prescribed phenobarbital for this seizure disorder. The doctor told Mr. Nielson that it was not possible to determine whether she had neurological problems until she was older and could be tested.
The doctors did not rule out DiGeorges syndrome until February 1990. In April 1990, when Christina was nine months old, she had a second heart surgery. At this time, Mr. Nielson asked if she had a brain injury. The doctor responded it was too early to tell and that she could not be tested or evaluated until she was older.
In May 1990, when Christina was 10 months old, doctors performed an EEG and told the Nielsons that Christina's brain was normal and that she could be taken off phenobarbital.
Dr. Herndon reassessed Christina in October 1990, and for the first time, a doctor diagnosed her with a brain injury. In a letter to the Nielsons, Dr. Herndon stated that Christina had suffered significant neurological deficits secondary to cardiogenic shock in her first week of life. This was the first time that anyone had told the Nielsons that Christina had neurological deficits and that these deficits were caused by cardiogenic shock during the first week of Christina's life.
In September 1989, the Nielsons briefly discussed the treatment Christina had received at Madigan with Roberts while he was representing them in an unrelated automobile accident claim. Subsequently, Roberts advised the Nielsons in two letters that the statute of limitations was three years. In fact, the applicable statute of limitations under the Federal Tort Claims Act is two years because Madigan Army Hospital is an agency of the United States, which can be sued only under the Federal Tort Claims Act. 28 U.S.C. § 2401(b).
The Nielsons met with another attorney in the fall of 1991 and filed a claim on Christina's behalf against Madigan on November 14, 1991, under the Federal Tort Claims Act. The Nielsons filed their claim within two years of the diagnosis of brain damage but more than two years from the time of Christina's birth.
In the federal district court, the government filed a summary judgment motion asserting that the two-year statute of limitations barred the action. A bifurcated trial took place before Judge Dwyer. The first phase dealt with the statute of limitations issue. Judge Dwyer held that the Nielsons filed their claim within the two-year period required by the Federal Tort Claims Act. Judge Dwyer specifically stated that Christina's brain injury was the only physical injury for which the Nielsons sought damages. Judge Dwyer found that the claim did not accrue until the parents discovered the brain injury and its cause in October 1990. Judge Dwyer further noted that this was a subtle injury, difficult to detect except over time as the child developed. Then, Judge Dwyer heard a trial on the merits, found Madigan negligent, and awarded $3,333,202 to the Nielsons.
The government appealed on the issue of the statute of limitations. The Nielsons cross-appealed for the damages that the trial court did not award. While the appeal was pending, the Nielsons accepted $2,850,000 in settlement of the case or 85.5 percent of the judgment awarded by the district court. The Nielsons and Mr. Dussault, Christina's guardian ad litem, explained that they settled because of the risk of reversal on appeal and to obtain the money right away.
On August 2, 1996, the Nielsons brought this malpractice action in state court against Roberts and his firm to recover for two categories of damages (1) the difference between the $3,333,202 judgment awarded at trial in the underlying Nielson v. United States case and the settlement amount of $2,850,000 ($483,202); and (2) the amount of damages that were not awarded by the trial court and were the subject of the Nielsons' cross-appeal against the government ($6,102,183).
Roberts and Eisenhower & Carlson moved for summary judgment. Judge M. Karlynn Haberly granted the summary judgment motion on the basis that the Nielsons "failed to make a prima facie showing of evidence on the element of proximate cause, sufficient to raise a genuine issue of disputed material fact." Judge Haberly denied the Nielsons' motion for reconsideration on August 19, 1998.
When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The issue of proximate cause is reviewable on appeal as a question of law if all inferences from the evidence are incapable of reasonable doubt. City of Seattle v. Blume, 134 Wash.2d 243, 252, 947 P.2d 223 (1997).
Liability for legal malpractice requires proof of four elements: (1) the existence of an attorney-client relationship giving rise to a duty of care on the part of the lawyer; (2) an act or omission breaching that duty; (3) damage to the client; and (4) the breach of duty must have been a proximate cause of the damages to the client. Hizey v. Carpenter, 119 Wash.2d 251, 260-61, 830 P.2d 646 (1992).
Roberts argues that even if he was negligent, his negligence was not the proximate cause of the Nielsons' loss. Thus, at issue in this case is the final element of proximate cause. The parties dispute how to determine whether Roberts' negligence was a proximate cause of the Nielsons' loss in the unfavorable settlement. Roberts argues that proximate cause exists only if the Nielsons show they would have lost on appeal due to Roberts' incorrect advice. In contrast, the Nielsons argue that since the independent business judgment rule has been rejected in Blume, 134 Wash.2d 243, 947 P.2d 223, they need to show only that Roberts' incorrect advice was one of the causes of the unfavorable settlement.
Before 1997, some Washington courts followed the independent business judgment rule. See Marsh v. Commonwealth Land Title Ins. Co., 57 Wash.App. 610, 622-24, 789 P.2d 792, review denied, 115 Wash.2d 1025, 802 P.2d 127 (1990); see also King v. City of Seattle, 84 Wash.2d 239, 250-51, 525 P.2d 228 (1974). According to this rule, "if a plaintiff, by the exercise of independent business judgment, elects not to pursue available legal remedies, the wrongful act of the defendant is not the proximate cause of the plaintiff's damages." Blume, 134 Wash.2d at 251, 947 P.2d 223. But the Washington Supreme Court in Blume rejected the independent business judgment rule and held that it "can no longer serve as a bar to the proximate cause element of a legal claim." Blume, 134 Wash.2d at 260, 947 P.2d 223. Specifically troubling to the court was that Blume, 134 Wash.2d at 259, 947 P.2d 223. In...
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