Seltrecht v. Bremer, 536 N.W.2d 727 (Wis. Ct. Apps. 1995)

WI: Underlying Medical Malpractice

Student Contributor: Jeff Cain

Facts: Patient was prescribed an anti-nausea medication during pregnancy. After baby was born with birth defects, patient retains an attorney. Attorney mistakenly claims that the statute of limitations has ran out on their claim against the doctor. By the time that the patient discovers that this was a mistake, the statute of limitations had run out. The patient sued the lawyer for legal malpractice to collect what the patient would have recovered if the attorney had not provided incorrect legal advice.

Issue: What is the extent of discovery in a legal malpractice suit based on an underlying medical malpractice suit?

Ruling: The extent of discovery in a legal malpractice suit is lower than a medical malpractice suit. In a medical malpractice suit, the doctor is the defendant. In a legal malpractice suit, the defendant is the lawyer, but where the issue depends on the actions of a doctor, the underlying medical malpractice claim must be tried. But the patient’s entire medical history may not be turned over to the opposing party’s attorneys. Medical history must be limited to only the information relevant to the claim, and must exclude all confidential information.

Lesson: Lawyers defending themselves in a legal malpractice case do not have the same access to patient information as doctors do, even though both doctors and lawyers have a duty of confidentiality.