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Nielson v. Eisenhower & Carlson


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. 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

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