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Dutt v. Kremp12/22/1992
y, 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 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, 607 P.2d 438, 448 (Kan. 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.
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 ruling that when the operative facts are in dispute, the trial court may, by special verdict form or by a hypothetical jury instruction, provide guidance to the jury as to what facts will constitute probable cause. Bradshaw, 758 P.2d at 1321.
The majority concludes, and I agree, that the operative facts in this case are not in dispute and that the district court should have ruled on the issue of probable cause as a matter of law. Based upon my review of the record, however, I must agree with respondents that the district court impliedly ruled in their favor on the issue of probable cause. The issue was fully discussed by
[108 Nev. 1076, Page 1090]
the parties at trial, and the trial judge refused to grant an NRCP 41(b) motion to dismiss at the conclusion of plaintiffs' case, ruling that plaintiffs had “made out a prima facia case.” The trial judge also rejected Dutt's motion for a directed verdict at the conclusion of the evidence. In any event, my review of the record leads me to conclude, contrary to the majority's determination, that as a matter of law, Dutt did not have probable cause to file the lawsuit even under the Sheldon Appel Co. standard. I have previously recounted the numerous derelictions surrounding the filing of the complaint and will only observe here that if, as the majority concludes, there was probable cause for Dutt's lawsuit, there would appear to be little basis for ever holding attorneys legally accountable for the filing of frivolous medical malpractice claims.
Needless to say, I also disagree with the majority's ruling on the issue of malice. A jury may infer malice from an absence of probable cause, Nelson, 607 P.2d at 445, and as previously observed, I find ample evidence in the record undermining the majority's recognition of probable cause. Moreover, I again emphasize that in my view, there is no basis for concluding that Dutt's pre-filing behavior and preparation were reasonable. In any event, the record as I read it, provides ample support for the jury's finding of malice.
I suggest that th
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