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Full Opinion
Virgil D. DUTT, Appellant and cross-respondent,
v.
Richard E. KREMP, M.D.; Raymond L. Swarts, M.D.; Paul S. Clark, M.D.; and David C. Johnson, M.D., Respondents and Cross-Appellants.
Supreme Court of Nevada.
*356 Wait & Shaffer, Reno, Lillick & Charles and Tristam B. Brown and James J. Corbelli, San Francisco, for Appellant/Cross-Respondent.
Carl M. Hebert, Reno, for Respondents/Cross-Appellants.
OPINION
SHEARING, Justice.
This appeal arises from a jury verdict and judgment against attorney Virgil Dutt ("Dutt") in favor of respondent physicians in an action for malicious prosecution and abuse of process. Dutt had filed a malpractice action against the physicians on behalf of Jack Rentnelli ("Rentnelli"), which Rentnelli later voluntarily dismissed. This dismissed malpractice action formed the basis of the physicians' allegations of malicious prosecution and abuse of process against both Dutt and Rentnelli. At trial, at the close of the physicians' case, the district court dismissed the action against Rentnelli and awarded him costs. The case against Dutt was submitted to a jury, which returned a verdict against Dutt. Dutt appeals the judgment against him. The physicians cross-appeal on the issue of costs.
The issues on appeal are whether the court rather than the jury should have decided certain issues, and whether there was sufficient evidence to support a verdict of malicious prosecution or abuse of process against Dutt.
FACTS
In February and March, 1985, respondent physicians treated Rentnelli at a local hospital for an ailment that was eventually diagnosed as tuberculous meningitis and hydrocephalus. Rentnelli was given medication, and after approximately two weeks was discharged from the hospital. Rentnelli's son ("John"), testified that after treatment Rentnelli's condition continued to deteriorate, that John tried to reach one of the physicians by telephone, but was only allowed to speak with the staff and not with the doctor. Rentnelli's condition deteriorated to the point that after ten days John decided to seek new physicians and flew Rentnelli to a Santa Barbara hospital where a new doctor surgically implanted a shunt to relieve pressure on his brain. Immediately after this treatment, Rentnelli improved markedly. The Santa Barbara doctor told Rentnelli's son that if he had not brought Rentnelli in when he did, Rentnelli might not have lived.
Based on this series of events, Rentnelli and his family believed that he had not received proper care by respondent physicians and consulted Rentnelli's attorney, Virgil Dutt. Dutt interviewed Rentnelli and John, *357 and obtained the medical records from the physicians in Reno and Santa Barbara. Dutt reviewed the records and researched both medical literature on meningitis and hydrocephalus and legal authorities regarding malpractice actions. Based on this review and research, Dutt filed a malpractice action against the physicians on December 30, 1985. After the action was filed, Dutt continued his factual investigation and research. Upon learning of the Medical Quality Foundation in Virginia, Dutt agreed with one of physicians' counsel that he would submit the Rentnelli records to that foundation for evaluation; if the Foundation supported his claims, he would continue to prosecute the action, if not, Dutt would dismiss it. The Medical Quality Foundation concluded that given Rentnelli's condition, the one-month between Rentnelli's initial admission in Reno and the eventual shunt placement in Santa Barbara "would not produce significant brain damage," and that there was no provable negligence apparent from the records. On January 30, 1987, Dutt dismissed the malpractice action.
On December 29, 1987, the physicians filed their complaint for malicious prosecution and abuse of process against Rentnelli and Dutt. The court granted Rentnelli's motion for a directed verdict at the close of the physicians' case. The case against Dutt was tried before a jury which returned a verdict in the total amount of $40,000[1] in favor of the physicians against Dutt.
DISCUSSION
The questions presented in this appeal are: (1) whether the issue of probable cause should have been determined by the court rather than submitted to the jury, and (2) whether there was sufficient evidence to support the jury's verdict that Dutt was guilty of malicious prosecution or abuse of process.
The court instructed the jury on both malicious prosecution and abuse of process but the jury did not specify on which cause of action it based its verdicts. This court has held that the difference between the two torts is that the action for abuse of process hinges on the misuse of regularly issued process, in contrast to malicious prosecution, which rests upon the wrongful issuance of process. Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 606, 503 P.2d 9, 12 (1972). Malice and want of probable cause are necessary elements for recovering in an action for malicious prosecution, but they are not essential to recovery for abuse of process. Id. The fundamental elements of abuse of process are an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding. Id. Because the jury did not specify which it found, both causes of action will be discussed.
Malicious Prosecution
The elements that must be proved in a malicious prosecution action in addition to the filing of a prior action against the plaintiffs are: (1) a lack of probable cause to commence the prior action; (2) malice; (3) favorable termination of the prior action; and (4) damages. See Chapman v. City of Reno, 85 Nev. 365, 369, 455 P.2d 618, 620 (1969). The first question presented in this appeal is whether, as appellant contends, the trial court erred by refusing to rule on the issue of probable cause.
When there is no dispute concerning the facts upon which an attorney acted in filing the prior action, the question of whether there was probable cause to institute the prior action is purely a legal question to be answered by the court. Bonamy v. Zenoff, 77 Nev. 250, 252, 362 P.2d 445, 447 (1961). Here, the trial court submitted the question of probable cause to the jury. We hold that this was error, because the facts upon which Dutt relied in filing the malpractice action are essentially undisputed.[2] The existence of probable cause was a legal question which, under Bonamy, the district court should have decided.
*358 In Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 504 (Cal. 1989), the California Supreme Court offered a persuasive rationale for the requirement that the court, rather than the jury, determine the existence of probable cause:
The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors, and courts have recognized that there is a significant danger that jurors may not sufficiently appreciate the distinction between a merely unsuccessful and a legally untenable claim. To avoid improperly deterring individuals from resorting to the courts for the resolution of disputes, the common law affords litigants the assurance that tort liability will not be imposed for filing a lawsuit unless a court subsequently determines that the institution of the action was without probable cause.
There is a division of authority in other jurisdictions as to whether the existence of probable cause in a malicious prosecution action should be judged by a strictly objective standard or by a combination of an objective and a subjective standard. In other words, in addition to whether a reasonable attorney would have found probable cause to file the action, must the filing attorney also have had an honest belief that the cause of action was meritorious? Compare, e.g., Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498 (Cal. 1989) (objective standard) with Bradshaw v. State Farm Mut. Auto. Ins., 758 P.2d 1313 (Ariz. 1988) (subjective and objective standard). See generally Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1979). It appears that the result in this case would have been the same regardless of which standard was used, since there is no evidence in the record that the subjective standard is not met, i.e., that Dutt lacked an honest belief that his cause of action was meritorious. However, the standard affects the evidence required and allowed to be presented. Therefore, this court must decide which standard applies.
Clearly, there is a societal interest in providing an opportunity for peaceable redress for people who believe they have been wronged. However, society also has an interest in protecting people from unjustifiable and unreasonable litigation. That is the policy behind the tort of malicious prosecution. Attorneys have the role of facilitating access to our judicial system. Attorneys are charged with what may appear to be conflicting ethical obligations not to file unwarranted suits and to represent their clients' interests diligently. In Wong v. Tabor, 422 N.E.2d 1279, 1286 (Ind. Ct. App. 1981), the court described these considerations as follows:
While an attorney is under an ethical duty to avoid suit where its only purpose is to harass or injure, if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client's interests must be paramount... . [T]he very nature of our adversary system of law mandates that the most useful and meaningful tests in this area must be derived from an attorney's ethical and professional obligations to his client... .
We thus emphasize that any standard of probable cause must insure that the attorney's duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit is preserved.
(Citations omitted.)
We conclude that the objective test set forth by the California Supreme Court in Sheldon Appel Co., is most appropriate to maintain the balance between these interests. Under this test, the court must determine whether, on the basis of the facts known to the attorney, a reasonable attorney would have believed that the institution of the prior action was legally tenable. Sheldon Appel Co., 765 P.2d at 511. The standard is objective rather than subjective. The degree of expertise and the belief of the attorney are not relevant.
This court may determine whether Dutt had probable cause for filing the malpractice *359 action in this case since the material facts were fully developed at trial and are essentially undisputed. See Nyberg v. Kirby, 65 Nev. 42, 67-68, 188 P.2d 1006, 1018 (1948), see also Pink v. Busch, 100 Nev. 684, 691, 691 P.2d 456, 461 (1984).
Dutt had information from Rentnelli's medical records, the description of events by Rentnelli and his son, John, and medical literature on meningitis and hydrocephalus. Judging Dutt's filing of the malpractice action under the objective standard, we conclude that a reasonable attorney would have believed that the action against the Reno doctors was legally tenable. The very fact that Rentnelli's condition continued to deteriorate after treatment by the Reno doctors but immediately improved after the Santa Barbara doctors' treatment would lead a reasonable person to believe that the first doctors did not adequately treat Rentnelli's ailments. A Santa Barbara doctor even told John that Rentnelli would have died if he had not brought Rentnelli in to them when he did. Dutt had no reason to believe that any of this information was unreliable. In fact, the medical records corroborated his client's statement of events.
There is no absolute requirement that an attorney obtain an expert medical opinion before filing a malpractice lawsuit. See Badell v. Beeks, 765 P.2d 126, 129 (Idaho 1988). Whether enough information exists for a reasonable attorney to file a malpractice suit remains discretionary. In some situations the facts related by the patient may provide a sufficient basis to file suit, such as where a doctor amputates the wrong leg. In other situations, where the medical situation is more complex, more extensive research may be required, including consultation with medical experts. In the instant case, we hold that a reasonable attorney would have believed that he or she had sufficient information to justify filing a malpractice action.
It has never been the law that every piece of evidence necessary to prevail at trial must be available to the attorney before suit is filed. That is one of the functions of discovery.
The objectively reasonable standard set out above already applies in a malpractice suit against a physician. Physicians routinely make diagnoses and provide treatment based on the initial information given by the patient, even while planning further tests. When the doctor obtains additional information a different treatment may be indicated, but no one would suggest that taking preliminary action on the basis of the initial examination and history constitutes malpractice. Each professional may take objectively reasonable actions on the basis of information available at the time.
Just as an action for malicious prosecution will lie where a person commences an action without an objectively reasonable basis, an action will also lie where a person wrongfully continues a civil proceeding without probable cause. Nelson v. Miller, 607 P.2d 438, 433 (Kan. 1980). This theory was presented to the jury below, and respondents contend that the jury's verdict can be sustained on this basis. We disagree. The evidence adduced below does not support a finding against Dutt on this theory. Dutt received the Medical Quality Foundation's report on September 16, 1986, and he prepared a stipulation for dismissal the very next day. Moreover, after receiving the report, Dutt neither initiated further proceedings in the case nor conveyed any formal settlement demands to respondents. In our view, this evidence conclusively shows that Dutt discontinued the proceedings once he learned that a medical expert concluded that the delay in treatment did not cause significant damage, and that there was no probable negligence apparent from the medical records.
Since we have determined that Dutt had probable cause to file a complaint, no further inquiry is required as to the other elements of an action for malicious prosecution.
Abuse of Process
At the close of trial, Dutt moved for a directed verdict and for judgment notwithstanding the verdict or, in the alternative, for a new trial on the grounds that there was no evidence to support a verdict in favor of the *360 physicians on their abuse of process claim. The trial court denied these motions, and Dutt contends that this was error. We agree.
An abuse of process claim consists of two elements: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Kovacs v. Acosta, 106 Nev. 57, 59, 787 P.2d 368, 369 (1990). An "ulterior purpose" includes any "improper motive" underlying the issuance of legal process. See Laxalt v. McClatchy, 622 F. Supp. 737, 751 (D. Nev. 1985). At trial, the physicians assigned two improper motives to appellant Dutt.
The physicians first argued that Dutt and Rentnelli filed the malpractice action in an effort to avoid paying the bill for medical services provided by respondents. Even if Rentnelli was motivated by a desire not to pay respondents, Dutt clearly was not. Nothing in the record supports such a claim where Dutt is concerned.
Second, the physicians asserted that Dutt filed the malpractice action to coerce a nuisance settlement. According to the physicians, this improper motive was demonstrated by Dutt's attempt to negotiate a settlement with the lawyer for one of the respondents after he had obtained the Medical Quality Foundation's report. The record does not support a finding of such improper motive. While the physicians attempted to analyze Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980), this case is readily distinguishable. In Bull, a jury award for a doctor in an abuse of process suit was supported by substantial evidence that the attorney filed a medical malpractice suit for the ulterior purpose of coercing a nuisance settlement. The attorney examined no medical records, conferred with no one, and then offered to settle the case for $750. Id. at 708, 615 P.2d at 959. This court held that this evidence was sufficient to sustain the verdict for abuse of process against the attorney. Id. at 709, 615 P.2d at 960. Unlike the defendant attorney in Bull, Dutt examined all the medical records, consulted medical and legal authorities, made no formal demand for settlement, and dismissed the complaint shortly after receiving the Medical Quality Foundation's report. Thus, we conclude that there is insufficient evidence to support a finding that appellant filed the malpractice action to coerce a nuisance settlement.
There is no evidence that appellant Dutt harbored an ulterior motive; because he was apparently merely attempting to resolve Rentnelli's apparent malpractice dispute with respondents, we need not consider the second element of an abuse of process claim, namely, whether appellant engaged in a willful act in the use of process not proper in the regular conduct of the proceeding.
CONCLUSION
For the reasons set forth above, we reverse the judgment entered below, and we remand this case to the district court for entry of judgment in favor of the appellant. Our decision renders the physicians' cross-appeal moot.
SPRINGER and YOUNG, JJ., concur.
STEFFEN, Chief Justice, with whom ROSE, Justice, agrees, dissenting:
In this court's opinion in Dutt v. Kremp, 109 Nev. 397, 848 P.2d 1073 (1993), we granted rehearing and ordered that the original opinion issued on December 22, 1992 (Dutt v. Kremp, 108 Nev. 1076, 844 P.2d 786 (1992)) (Dutt I) be withdrawn. The majority opinion issued today again reverses the judgment entered pursuant to jury verdicts in the district court. I remain convinced that the record provides substantial evidence to support the factual findings by the jury and sound legal support for the district court's post-trial rulings denying Dutt relief from the judgment entered pursuant to the jury's verdicts favoring the respondent physicians. I am therefore again forced to dissent. In large measure, the dissent set forth herein constitutes a restatement of my earlier dissent in Dutt I.
If we were reviewing a judgment against a member of the medical profession for medical malpractice on equivalent facts, there is little doubt that the judgment would be upheld. *361 Consider the hypothetical physician who, after listening to the complaints of a patient, reaches a diagnosis in an area outside his or her area of expertise without even performing a meaningful medical evaluation. Moreover, the hypothetical physician disdains a consultation, forging ahead on the basis of an unconfirmed diagnosis derived almost entirely from the verbalized complaints of the patient. Finally, the uninformed physician performs unnecessary and unsuccessful surgery. Accountability for medical malpractice under those circumstances would be both predictable and justified.
In the instant case, attorney Dutt filed a thoroughly inadequate complaint against numerous doctors and a hospital two days before the effective date of a statute that would have required Dutt to file a complaint with a medical-legal screening panel.[1] The purpose for which the screening panel procedure was enacted is to discourage or minimize the filing of medical malpractice actions that are lacking in merit. The benefits of such a screening procedure are obvious: lower medical malpractice insurance rates (insurance costs are always passed on to the patients), less diversion of limited medical resources to defend against unwarranted litigation, enlightenment to attorneys inexperienced in complex medical malpractice cases, and a decreased toll on physicians and their reputations that would otherwise result from unmeritorious malpractice actions, to name but a few. According to attorney Dutt, the instant action was the first time he had ever filed a civil complaint for medical malpractice.
The majority concludes that a reasonable attorney "would have thought that the action against the Reno doctors was legally tenable" based upon the following factors: (1) Dutt had information from Rentnelli's medical records; (2) the description of events by Rentnelli and his son; and (3) medical literature on meningitis and hydrocephalus. Moreover, after reaching the conclusion that a reasonable attorney would have endorsed the sufficiency of the meager efforts itemized above, the majority added two additional observations: (1) that Rentnelli's condition continued to deteriorate after treatment by the Reno doctors and improved after treatment in Santa Barbara; and (2) the Rentnelli's son was informed by "the Santa Barbara doctor" that "his father would have died if he had not brought him in to them when he did."
The foregoing factors constitute the sum and substance of the majority's conclusion supporting a reasonable attorney's belief that a malpractice action was "legally tenable." I suggest that both the medical and legal professions have much to fear if the majority's evaluation continues to prevail. I also suggest that the foregoing recital of what the majority finds adequate under an objective standard is woefully inadequate under any standard. This was Dutt's first venture into the complex world of medical malpractice. Medical records and treatises left unanalyzed by medical professionals are of little value to persons untrained in medicine or attorneys who have not developed either an expertise in medical malpractice, or paid the price to fully inform themselves of the proper requisites for handling such a complex area of the law. To conclude, as the majority obviously does, that a tyro in medical malpractice litigation can translate highly technical medical records and treatises into a reasoned determination of malpractice without even consulting a knowledgeable health care provider, let alone the physician who provided later care to the patient/client and who allegedly had knowledge of professional negligence by the treating physicians, is worrisome to the extreme.
Remembering that a jury heard the evidence and observed the witnesses, it is revealing to outline a number of the operative facts which, I submit, strongly support the verdicts reached by the jury. Relevant factors include: (1) prior to filing the complaint, the inexperienced Dutt assigned a law school graduate who worked for him to read the medical records and evaluate them with him; (2) Dutt relied on the law school graduate's *362 "opinions and recommendations as to what was in the [medical] records and how to interpret them;" (3) Dutt contacted no physicians or medical experts of any kind prior to filing the complaint; (4) Dutt did not even bother to contact the physicians who succeeded the respondent physicians in caring for his client; (5) at no time prior to filing the complaint did Dutt have any health care provider or physician review the medical records to determine whether a cause of action for medical malpractice existed; (6) after receiving a letter from Dr. Johnson, one of the physicians sued by Dutt, the latter responded to Dr. Johnson's attorney that the physician's letter "caused him to look at the case much more critically;" (7) almost nine months after Dutt filed his complaint against the Reno physicians, The Medical Quality Foundation ("Foundation"), with whom Dutt had at last corresponded in order to obtain a professional, medical evaluation of Rentnelli's treatment by the Reno physicians, informed Dutt that with respect to Rentnelli's condition, "[o]nce diagnosis is reached based on clinical features and laboratory studies, treatment is instituted at the earliest convenience, since without treatment an invariably fatal outcome occurs within 4 to 8 weeks of the onset." Continuing with its lengthy analysis, the Foundation concluded "[a]fter thorough review and research we can find no provable negligence in this case[;]" (8) On November 17, 1986, Dutt wrote to Dr. Johnson's attorney, observing in part:
[Y]ou stated that Dr. Johnson is very upset. I can understand his feelings. Determining that the problem was tuberculosis related clearly was brilliant.
Our problem was the failure to relieve the pressure within the skull. It now seems apparent that the pressure could have remained for an indefinite period of time without serious damage and that a shunt was only a matter of personal preference. The fact that Mr. Rentnelli was on the proper medicine was apparently the only important factor.
We now have Dr. Domz' deposition and clearly no reason exists for delaying the inevitable. It is very clear that I would be unable to carry the burden of the proof and therefore request dismissal of this matter. (emphasis added); (9) Rentnelli did not keep his follow-up appointments with the Reno physicians; (10) Dutt irresponsibly denied a request to admit that he had no expert witness "known or believed to be willing to testify under oath as a physician that the [Reno physicians] had breached the standard of care;" (11) in an answer to an interrogatory, Dutt identified Santa Barbara physician Dr. Domz "as a witness who would state that the CT Scans in Reno were not properly interpreted;" (12) two months after Dutt had received the Foundation report indicating no provable negligence, and even as he praised the Reno physicians' diagnosis as "brilliant," Dutt explained to Dr. Johnson's counsel that he had told attorney Osborne, who also represented certain of the defendants in the medical malpractice action, that he, Dutt, would not dismiss the action "until after the depositions came back in the event that Dr. Domz did suggest that the treatment did not meet the standard of care that one should expect from this area;" (13) Dutt, having stated in the answer to interrogatory referred to above that Dr. Domz would, as a witness, testify that the CT Scans taken in Reno were not interpreted properly, did not even bother to appear in California at the taking of his "witness'" deposition; (14) at no time did Dutt even speak to Dr. Domz, the Santa Barbara physician upon whom Dutt was allegedly going to rely for proving his case of medical negligence on the part of the Reno physicians; (15) Dr. Domz, in fact, found no fault with the treatment provided by the Reno physicians, a fact which prompted Dutt to admit in his letter of November 17, 1986, to attorney Pagni that "[w]e now have Dr. Domz' deposition and clearly no reason exists for delaying the inevitable" (emphasis added); (16) it was clear that by forcing counsel for the Reno physicians to depose Dr. Domz, Dutt "hoped" that the Santa Barbara physician might say something, anything, that might provide a liability peg upon which to hang his hat, but his "hope" was not sufficiently strong to warrant the expenditure of his time and money to prepare for and attend the deposition of his critical "witness;" and (17) even after all of the foregoing factors and events, Dutt still *363 attempted to exact a nuisance settlement out of attorney Osborne.
The majority tells us that despite all the aforementioned factors, attorney Dutt's efforts represented a basis for a reasonable attorney to believe that there was probable cause to file this action against the Reno physicians! Moreover, the majority notes that it is not always necessary to obtain the opinion of a medical expert before filing a complaint for medical malpractice. In support of the proposition, the majority cites Badell v. Beeks, 765 P.2d 126 (Idaho 1988), a case involving a dentist who had ruined a model's career by filing her teeth without the patient's permission. The result of the dentist's work, demonstrated by before and after photographs, aptly portrayed why he was sued. Most likely, a medical expert would also be unnecessary to prove negligence in situations where a surgeon leaves a sponge in a patient's abdomen or removes a wrong appendage. See NRS 41A.100. Incredibly, with respect to the underlying area of medical negligence in the instant case, the majority observes that "[i]n other situations when the medical situation is more complex, more extensive research may be required, including consulting with medical experts. In the instant case, we find that a reasonable attorney would have believed that he or she had sufficient information to justify filing a malpractice action."
In Nevada, the importance and necessity of expert medical testimony or applicable medical literature demonstrating negligence under the circumstances at issue, is provided by statute:
Liability for personal injury or death is not imposed upon any provider of medical care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death... .
NRS 41A.100.
In order to demonstrate that the medical malpractice action filed by Dutt was not as simple as the majority would have us believe, I am attaching as Appendix A to this dissent a copy of the lengthy evaluation belatedly sought and received by Dutt from the Foundation.[2] I suggest that even lay persons will understand, as did the jury in the instant case, that the Reno physicians provided Rentnelli with life-saving expertise and treatment, properly characterized even by Dutt as "brilliant," and that the requisites of diagnosis and treatment were so complex that no action should have been contemplated, let alone filed, without first obtaining a thorough, professional medical analysis of the care provided by the Reno physicians. Unfortunately, their efforts were rewarded by the trauma and embarrassment of an ill-advised, precipitous and decidedly unenlightened lawsuit.
In assessing the majority's opinion that the malpractice action brought by Dutt against the Reno physicians was so simple that more extensive research and consultation with medical experts was unnecessary, I invite all interested persons to read the exhibit in the Appendix to this dissent. The readers should then ask themselves whether any person untrained in medicine could have reached a reasoned conclusion concerning the issue of malpractice without the assistance of someone with medical expertise. Indeed, Rentnelli's condition was so complex and difficult to diagnose, that additional specialized expertise had to be added to the medical team that cared for him and assisted with the diagnosis.
*364 I also find it doubly troubling that Rentnelli's Reno physicians, who were demonstrably vigilant and effective in their treatment and care of Dutt's client, were not only subjected to an unwarranted lawsuit, but were further demeaned at trial by Dutt's flippant and contradictory testimony ascribing the physicians' successful and difficult diagnosis to luck.
On these facts, it is little wonder that the respondent physicians insisted on having their efforts and their reputations vindicated in a trial against their uninformed, precipitant tormentor, attorney Dutt. I suggest that there is also little cause to wonder why the jury provided the respondent physicians with the vindication they sought from the civil justice system.
If society is to have any confidence in the legal system and the administration of justice within our courts, there must be an accountability for derelict lawyers that is equal to the level of accountability we impose on derelict physicians and other professionals. As I view this record, the evidence strongly supports the jury's findings against Dutt. Plainly stated, the jury, by its verdict, announced that lawyers are not privileged to assail the reputation of physicians in court and subject them to the enervating trauma, time and cost of a lawsuit with its concomitant attenuation of professional standing without reasonable cause.[3]
Turning now to certain aspects of the majority's legal analysis, I note first my disagreement with the majority's conclusions regarding probable cause and the role it played in this case. The majority endorses for adoption in Nevada the probable cause rule announced in Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498 (Cal. 1989). With due respect to the California Supreme Court, I do not find its reasoning either sound or persuasive on the point. In adopting an "objectively tenable" standard for determining probable cause, the Sheldon Appel Co. court concluded that "the adequacy of an attorney's research is not relevant to the probable cause determination." Id. at 510. In so ruling, the California court disapproved dictum in Tool Research & Engineering Corp. v. Henigson, 46 Cal.App.3d 675, 120 Cal. Rptr. 291 (1975), to the effect that "an attorney's reasonable investigation and industrious search of legal authority is an essential component of probable cause." Id. at 254 Cal.Rptr. at 347, 765 P.2d at 509.
It appears to me that the Sheldon Appel Co. rule is in essence a rule of happenstance. In other words, if, in evaluating the issue of probable cause, a court concludes that the action was objectively tenable when filed, then there is a proper basis for finding probable cause for filing the action despite a provable condition of complete ignorance on the part of the plaintiff's attorney regarding the merits of the action when the complaint was filed. I am of the opinion that the "objectively tenable" rule adopted in Sheldon Appel Co. tends to reward indolence, ignorance, indifference or exploitiveness by focusing on the ability of the defendant attorney and his counsel to produce, after the fact, a semblance of objective tenability that would satisfy the probable cause standard of the California court. This is a backward-looking rule that seeks to find and interject a rational basis for filing an action when an objective *365 analysis of the conditions surrounding the action at the time it was filed would reveal none.
I am persuaded that the rule embraced by the Supreme Court of Arizona in Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411, 758 P.2d 1313 (1988), is more appropriate. Holding that the test for probable cause is both subjective and objective, the Bradshaw court stated that "[t]he initiator of the action must honestly believe in its possible merits; and, in light of the facts, that belief must be objectively reasonable." Id. 417, 758 P.2d at 1319 (citing Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. 1977); Restatement (Second) of Torts § 675 cmt. c (1977); Prosser & Keeton on the Law of Torts § 120, at 893 (5th ed. 1984)) (emphasis in original text).
Under the Bradshaw view, an inexperienced attorney's failure to research, consult, interview and meaningfully prepare before filing a complaint would be relevant in determining whether the attorney could have entertained an honest belief in the possible merits of his or her client's cause of action. Moreover, the second prong of the Bradshaw test requires that the attorney's honest belief be objectively reasonable. The latter test thus becomes a form of validation of the former. Assuming the attorney has a modicum of legal ability that has been adequately focused on meaningful research and evaluation, it is logical to expect that the attorney's honest belief regarding the merits of the client's cause of action will be endowed with an aspect of objective reasonability.[4]
Moreover, at least in the more esoteric and complex areas of litigation, such as most instances of alleged medical malpractice, I disagree with both the majority and the Sheldon Appel Co. court in concluding that an attorney is entitled to rely entirely on what the client has said in determining whether there is probable cause to file an action. A client may, without any knowledge of the adequacy of his or her medical treatment, tell the attorney that the physician negligently treated him, describing the basis for his or her opinion. An attorney inexperienced in medical malpractice litigation may be as ignorant as the client with respect to the quality of the medical services actually provided by the client's physician. Under the view espoused by the majority, the uninformed attorney need not look beyond the client's perspective in determining whether there is probable cause to file a lawsuit. I believe such a view denigrates both the legal profession and the lawyers within the profession who are expected to apply enlightened understanding and analysis to a client's problems and concerns. See Nelson v. Miller, 227 Kan. 271, 607 P.2d 438, 448 (1980).
If a client describes a simple battery to his or her attorney, it could be argued that the attorney may have probable cause to file an action against the alleged tortfeasor on the basis of what appears to be an honest factual recital by the client. In such a case, it is at least arguable that the rule adopted by the majority might be justified. In most medical malpractice cases, however, research and diligent inquiry and preparation are essential to an honest conclusion that probable cause exists for the filing of a complaint. I therefore take issue with the blanket rule adopted by the majority in the instant case.[5]
I fully agree with both the Sheldon Appel Co. and Bradshaw courts that when the operative facts are not in dispute, the issue of probable cause is an issue of law to be decided by the court. I also agree with the Bradshaw *366 ruling that when the operative facts are in dispute, the trial