dissenting.
I concur in Parts V and VI of the majority opinion. However, at that point my brothers and I part company.
A
In deciding this case we do not write on a clean slate. The rule to be applied here was formulated over a century ago by this court in Woods v. Finnell, 76 (Bush.) Ky. 628 (1878) and more recently reiterated in Harter v. Lewis Stores, Ky., 240 S.W.2d 86 (1951). In Woods we said at 76 (Bush.) Ky. 633, 634:
“In cases where the plaintiff has mistaken his action, or been nonsuited, or where, by reason of some imaginary claim, he has seen proper to sue the defendant, it is not pretended that any action for damages can be maintained; but where the claim is not only false, but the action is prompted alone by malice and without any probable cause, the defendant’s right of recovery for the expenses incurred and damages sustained should be as fully recognized as if his property had been attached or his body taken charge of by the sheriff.
It must appear that the action was founded in malice, instituted without probable cause, and that the plaintiff has been damaged.
When the reputation has not been assailed, or the defendant imprisoned, or his property seized, or its use prevented, the damages should be confined to the loss of time, and the reasonable expenses incurred in the defense of the action beyond the ordinary costs.”
Drasin and Fadel concede that they have not been imprisoned, that their property has not been seized and that they have not been prevented from using their property. They have neither alleged nor proved that they lost time or expended funds in excess of ordinary costs in defense of the malpractice action brought against them. The damages they seek are based on embarrassment, humiliation, mortification and mental anguish. They may recover such damages only if their reputations have been assailed.
The allegations made against Drasin and Fadel were:
*904“On July 19, 1975, Plaintiff was admitted to the Defendant hospital as a cardiac patient, and thereafter, the Defendant physicians and each of them, undertook to treat this Plaintiff, and while so treating acting jointly and severally and/or in consort with the agents and servants of the Defendant hospital, performed in such a careless and negligent manner that this Plaintiff was caused to suffer a fracture and dislocation of his left shoulder and other damage to the bones and tissue thereabout, from which the Plaintiff will suffer physical and mental pain and permanent impairment of his power to labor and earn money.”
These allegations are no more than a plea of general negligence, which has been proper in Kentucky from time immemorial. Clay, Ky.Prac., 3rd Ed., Civil Rule 8.01, Comment 3. Facts descriptive of negligence are not disclosed. They are left to development by the discovery and trial processes. These allegations are like a Hawaiian muumuu, they cover everything and reveal nothing.
The complaint does not charge a general want of professional knowledge or skill. It does not charge a habitual course of negligent conduct. It does not charge arrant bungling. It is consistent with such relatively innocuous acts of negligence as failure to pull up a bed rail after examination or failure to secure an unattended patient to an X-Ray table. As it happens, the record discloses that the basis for the allegations was Browning’s explanation that while he was unconscious and being treated in the hospital he was allowed to fall off a table.
The reputation of a professional person is built of many accomplishments. No single achievement, unless it is of overwhelming significance that evidences extraordinary skill, suffices to establish it. Similarly, a professional’s reputation is not irreparably damaged by a single charge of negligence when that charge does not impute a complete lack of skill, habitual negligence or consummate ineptitude.
In Blende v. Hearst Publications, Inc., 200 Wash. 426, 93 P.2d 733, 735 (1939) the Supreme Court of Washington articulated a precise test to determine if reputation has been assailed:
“It is clear that to charge a physician merely with the mismanagement, or the making of a wrong diagnosis in a particular case, is not of itself actionable. . . . To charge a professional man with negligence or unskillfulness in the management or treatment of an individual case is no more than to impute to him the mistakes and errors incident to fallible human nature. The most eminent and skillful physician or surgeon may mistake the symptoms of a particular case without detracting from his general professional skill or learning.”
Eighty years ago in Manire v. Hubbard, 110 Ky. 311, 61 S.W. 466, 477 (1901) we indicated that we would apply such a test when we wrote:
“Words which are published in connection with one’s profession or calling, which imputes to him ignorance generally in his business or profession, or such ignorance or incapacity as unfits him for its proper exercise, are actionable per se; but it is not ordinarily actionable to charge one in a business or profession with want of skill or ignorance in a particular transaction.”
The conclusions are inescapable. The reputation of Drasin and Fadel were not assailed by the allegations of the complaint. The damage limitations of Woods v. Finnell, supra, apply. They were not entitled to recovery for mental pain and suffering. They proved no properly recoverable damages. Therefore, a verdict should have been directed against them at the close of their case.
B
Three paragraphs of the instructions given by the trial court to the jury in this case are reproduced in Part IV of the majority opinion. They disclose a complete lack of *905appreciation for the distinction between an intentional tort, malicious prosecution, and an unintentional tort, professional negligence.
It seems to me that our Court of Appeals correctly recognized a number of principles which are beyond cavil when it decided Hill v. Willmott, Ky.App., 561 S.W.2d 331 (1978):
1. Duties imposed on attorneys by the Code of Professional Responsibility and rules of court are for the protection of the public and their violation does not give rise to a private action for civil damages.
2. An attorney who files a medical malpractice suit against a physician owes no duty to the physician to investigate the claim before filing suit.
3. The physician’s sole remedy is an action for malicious prosecution which is founded upon an antecedent suit prompted alone by malice and without any probable cause.
An examination of the three reproduced paragraphs of the instructions discloses:
1. The first paragraph, which imposes on Raine and Highfield a duty to exercise reasonable professional care toward Drasin and Fadel, is legally incorrect and is completely irrelevant and immaterial to the disposition of this case.
2. The second paragraph permits recovery for malicious prosecution if either malice or want of probable cause is shown. This error is achieved by use of the much condemned conjunctive-disjunctive crutch of sloppy thinkers, and/or. See Strunk and White, The Elements of Style 35.
3. The third paragraph permits recovery on the basis of negligent malice. There is no such thing. Malice is an evil or wrongful purpose and this of necessity includes scienter.
The attempt by my brothers to legitimate these paragraphs is at best intellectual sophistry.
This part of the instructions should have read:
You will find for Raine and Highfield unless you are satisfied from the evidence that either, or both, Raine and Highfield commenced the professional negligence suit on behalf of Browning against Dra-sin and Fadel solely out of malice and without probable cause in which event you will find for Drasin and Fadel against the person or persons so acting.
All further references to ordinary care, negligence and gross negligence should have been omitted. The instructions on damage should have followed the guidelines set forth in Woods v. Finned, supra.
My criticism of the instructions does not end here. They also contain this abstract statement of law which spotlights a permissible inference for the jury:
“3. ‘Malice,’ if any, may be inferred from the want or lack of probable cause.”
We have repeatedly repudiated the philosophy which would include such materials in instructions. As Chief Justice Palmore said in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978):
“From time immemorial the emphasis with regard to jury instructions in this state has been placed on simplicity. ‘The function of instructions in this jurisdiction is only to state what the jury must believe from the evidence.. .in order to return a verdict in favor of the party who bears the burden of proof.’ Webster v. Commonwealth, Ky., 508 S.W.2d 33, 36 (1974). Thus we have sought to avoid abstract legal principles, presumptions, comments on the weight of the evidence, and references to the burden of proof, which is cast by the form of instruction requiring that in order to make an affirmative finding the jury must, on the basis of the evidence, believe certain specified facts to be true. This approach minimizes the possibility of intrusion by the judge into that particular area of decision-making which belongs exclusively to the jury, and it minimizes the possibility of error in that respect.”
And as I put it in my concurrence in that same case at 634:
*906“The system of instructing juries developed in Kentucky prohibits instructions on presumptions and permissible inferences. The theory is that to avoid undue influence by the trial judge on the fact finding process for or against either party the instructions should simply focus the attention of the jury on those ultimate facts which it must decide in order to reach a verdict. Consequently, the instructions are skeletal in form, given prior to closing argument and leave to the lawyers the task of fleshing them out in closing argument insofar as the eviden-tiary facts of the case, the weight of the evidence and the credibility of the witnesses are concerned.”
The instructions read as a whole are gibberish. Until today, we have never held that the submission of a case to the jury on instructions which compound confusion is not prejudicial. See 1 Palmore, Kentucky Instructions to Juries, Section 1.62.
I would reverse the decision of the Court of Appeals and the judgment of the Jefferson Circuit Court and remand the case to the trial court with directions to grant the motions of Raine and Highfield for a judgment notwithstanding the verdict.