## Facts

- Jack Rentnelli was treated by Reno physicians for tuberculous meningitis and hydrocephalus and discharged; his condition worsened after discharge.
- Rentnelli was taken to a California hospital where a physician implanted a shunt; Rentnelli improved significantly afterward.
- Rentnelli and his family hired Virgil Dutt, an attorney with no prior medical malpractice experience, to evaluate a potential malpractice claim.
- Before filing suit, Dutt interviewed Rentnelli and his son, obtained and reviewed medical records from both hospitals, and reviewed relevant medical and legal materials.
- Dutt filed a Nevada medical malpractice action against the treating physicians without obtaining a pre-filing expert medical opinion.
- During the malpractice litigation, Dutt agreed to submit records to an independent review organization (MQF) and to dismiss if the review did not support malpractice.
- MQF reported it found no apparent negligence; Dutt dismissed the malpractice action the next day.
- The physicians later sued Rentnelli and Dutt for malicious prosecution and abuse of process.
- The trial court directed a verdict for Rentnelli and awarded him costs; the claims against Dutt went to the jury, which awarded the physicians $40,000.
- The trial court denied Dutt’s post-trial motions; Dutt appealed, and the physicians cross-appealed the cost award to Rentnelli.

## Issues

1. Whether probable cause in a malicious prosecution action was improperly submitted to the jury and, applying the correct standard, whether Dutt had probable cause to file the malpractice suit.
2. Whether the evidence supported the elements of malicious prosecution against Dutt, including malice and damages, given Dutt’s pre-filing investigation and prompt dismissal after independent review.
3. Whether sufficient evidence supported an abuse of process claim based on Dutt’s conduct in filing and litigating the malpractice action.
4. Whether the directed verdict and cost award in favor of Rentnelli were proper.

## Decision

- The court reversed the judgment against Dutt and directed entry of judgment in his favor.
- The court held the trial court erred by submitting probable cause to the jury where the material facts were not in dispute.
- The court concluded Dutt had probable cause as a matter of law to file the malpractice action based on the information he gathered and reviewed.
- The court reversed the abuse of process verdict, finding insufficient evidence of an improper act in the use of process beyond filing and pursuing the suit.
- The court affirmed the directed verdict and cost award in favor of Rentnelli, rejecting the physicians’ cross-appeal.

## Legal Principles

- In a malicious prosecution case, probable cause is a question of law for the court when the underlying historical facts are undisputed.
- Probable cause is assessed objectively: whether a reasonable attorney, based on the known facts, would believe the prior action was legally tenable.
- Failure to obtain a pre-filing expert opinion does not, by itself, establish lack of probable cause if the attorney otherwise conducted a reasonable factual and legal investigation.
- Abuse of process requires (1) an ulterior purpose and (2) a willful act using legal process in a manner not proper in the regular conduct of the proceeding; filing a lawsuit alone is insufficient without a distinct misuse of process after issuance.
- A client is not liable for malicious prosecution absent evidence the client initiated or continued litigation without probable cause and with malice.

## Conclusion

The court set aside the verdict against the attorney because probable cause was for the court to decide and existed on the undisputed facts, and because the record showed no post-filing misuse of judicial process to support abuse of process; it also upheld the directed verdict and costs awarded to the client.


Dutt v. Kremp, 894 P.2d 354 (Nev. 1995)