dissenting:
I am persuaded that the trial evidence supports the verdict reached by the jury and that the result and substance of the majority opinion are incorrect. I am therefore constrained to dissent.
If we were reviewing a judgment against a member of the medical profession for medical malpractice on equivalent facts, I have no doubt that the judgment would be upheld. Consider our 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, our hypothetical physician disdains a consultation, deciding to forge ahead on the basis of an unconfirmed suspicion 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.
*1086Prior to filing the complaint, Dutt assigned a law school graduate who worked for him to read the medical records and evaluate them with him. Dutt testified that he relied on the law school graduate’s “opinions and recommendations as to what was in the [medical] records and how to interpret them.”2 Dutt contacted no physicians prior to filing the complaint. He did not even bother to contact the physicians who succeeded the respondent physicians in caring for his client. Moreover, at no time prior to filing the complaint did he have a qualified health care provider or physician review the medical records to determine whether a cause of action for medical malpractice existed. In short, there had been no responsible preparation undertaken to determine whether malpractice had occurred before Dutt filed the complaint.
Additionally, Dutt was irresponsible in his response to discovery, denying requests for admissions instead of forthrightly admitting the truth of the requests. As a result, respondent physicians’ counsel was forced to depose a California physician, Dr. Domz, whom Dutt identified as having information concerning the respondent physicians’ negligence. Dutt did not even bother to appear at the taking of Dr. Domz’s deposition. Moreover, Dr. Domz, who testified during his deposition that he had no criticism of respondent physicians’ treatment of Dutt’s client, had never been contacted by Dutt, either before Dutt prepared the answer to interrogatory noted above for his client’s signature, or at any time thereafter. Furthermore, almost two months after Dr. Domz was deposed, Dutt wrote A1 Pagni, attorney for three of the respondent physicians, and informed him that he had told Dr. Kremp’s attorney that he 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.” Although Dutt did not have sufficient belief that Dr. Domz would testify negatively about the respondent physicians to prompt him to undertake the expense of attending the California physician’s deposition, he clearly hoped that something might turn up that would provide a liability peg on which to hang his hat.
Finally, with no medical evidence, testimony or evaluation that *1087would support his cryptic complaint against the Reno team of physicians, Dutt still attempted to effectuate a nuisance settlement with attorney Osborne, counsel for Dr. Kremp.
Doubly troubling in this case is the fact that it appears from the record that the respondent doctors were especially vigilant and effective in their treatment and care of Dutt’s client despite Dutt’s flippant testimony at trial ascribing their successful and difficult diagnosis to luck. In fine, it appears that the physicians sued by Dutt effectively and skillfully applied their expertise and care in treating Dutt’s client, and were rewarded by the filing of Dutt’s ill-advised and desultory complaint.
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 trauma and cost of a lawsuit with its concomitant attenuation of professional standing without reasonable cause.
Turning not 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, 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, 120 Cal.Rptr. 291 (Ct.App. 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 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 *1088probable 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.
I am persuaded that the rule embraced by the Supreme Court of Arizona in Bradshaw v. State Farm Mut. Auto. Ins., 758 P.2d 1313 (Ariz. 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. at 1319 (citing Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. 1977)); Restatement § 675 comment c; PROSSER & KEETON ON THE LAW OF TORTS (5th ed. 1984) § 120, at 893 (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.3
Moreover, at least in the more esoteric and complex areas of litigation, such as medical malpractice, I disagree with both the majority and the Sheldon Appel Co. court in concluding that an *1089attorney 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 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.4
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 *1090the 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 Duff’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 Duff’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 Duff’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 the record also provides a factual basis for liability resulting from abuse of process. Duff’s attempt to secure a settlement after he was thoroughly disabused of the possibility of negligence on the part of respondents is discounted by the majority because the settlement attempt was unadorned by a “formal demand” or a “specific” monetary figure. I am unable to discern in the majority’s characterization of the evidence any basis for casting aside the jury’s verdict.
For the reasons abbreviated above, I would endorse the jury’s verdict and affirm the judgment entered pursuant thereto. I therefore respectfully dissent.
Dutt was not faced with a statute of limitations problem at the time he filed Rentnelli’s complaint.
The majority opinion states that Dutt spoke with an attorney “experienced in medical malpractice litigation,” prior to filing the action, who told him that Rentnelli’s claim had merit. I find no evidence in the record to support such an assumption. The record simply reflects testimony by Dutt, over his counsel’s objection, that he talked to an attorney (the name of the attorney was given, but there was no testimony concerning his experience, if any, in the area of medical malpractice) who told him Rentnelli’s case had merit.
I note, as did the Bradshaw court with regard to the Arizona rule, that the subjective-objective test is consonant with NRCP Rule 11 which forbids the filing of groundless actions by requiring an attorney to certify, by his or her signature, that “he or she has read the pleading . . . [and] that to the best of his or her knowledge, information and belief, formed after reasonable inquiry under the circumstances obtaining at the time of the signature, that it is well grounded in fact and is warranted by existing law. . . and that it is not interposed for any improper purpose . ...”
NRS 41A.016 now requires all medical malpractice complaints to be filed in the first instance with a screening panel for a determination on the merits. The complaint so filed must contain a clear and concise statement of the facts and other circumstances relevant to the alleged malpractice. As a salutary consequence, the prospects for recurring actions of the type presented by the instant case should be minimized.