Dutt v. Kremp , 111 Nev. 567 ( 1995 )

OPINION

By the Court,

Shearing, J.:

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, 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 $40,000¹ 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.

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 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 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.

1 The jury awarded $15,000.00 to Dr. Swarts, $5,000.00 to Dr. Johnson, $15,000.00 to Dr. Kremp, and $5,000.00 to Dr. Clark.

2 Even where the facts are disputed, the jury should be given the opportunity to find the facts, after which the court makes the legal determination of probable cause.