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Kirsch v. Duryea

578 P.2d 935 (1978)

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Kirsch v. Duryea

California Supreme Court
578 P.2d 935 (1978)

  • Written by Sharon Feldman, JD

Facts

John Kirsch (plaintiff) fell and injured his shoulder. After surgery, Kirsch’s arm was placed in a splint. Kirsch experienced numbness a year later. Kirsch’s doctor diagnosed nerve damage caused by an improper splint. The doctor operated, but the numbness continued. A neurologist concluded that another condition was causing numbness. Kirsch’s doctor agreed but also suggested possible spine issues. James Duryea (defendant), an experienced medical-malpractice litigator, filed a complaint on Kirsch’s behalf. Duryea reviewed Kirsch’s records, spoke to doctors, and did medical and legal research. Duryea concluded there was insufficient evidence of negligence. The records indicated that Kirsch’s numbness was not due to a defective splint. Kirsch never informed Duryea that a myelogram had ruled out spine changes. Duryea advised Kirsch that a trial was not justified, sent an attorney-substitution form, and stressed the need to go to trial by a certain date. Four months later, after sending Kirsch’s file to an attorney who declined to take the case, Duryea moved to withdraw. Kirsch’s case was dismissed for failure to comply with California’s five-year trial rule. Kirsch sued Duryea for legal malpractice. The jury found Duryea negligent. Duryea appealed.

Rule of Law

Issue

Holding and Reasoning (Clark, J.)

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