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HomeMy WebLinkAbout0062 In the instant case, although some facts were in dispute, in looking at the evic'.ence with all conflicts resolved in Dr. Sullivan's favor and in a light most favorable to him, he has not only failed to prove the lacl: of probable cause, but, in . fact, his evidence establishes probable cause for the filing of the medical malpractice action. Dr. Sullivan now argues that because, after filing it, ?Qr. Parker did virtually nothing to prepare his suit for trial, that fact alone is indicative of an absence of .probable cause. Without condoning this lack of preparation, we find the facts within Mr. Parker's knowledge at the time .suit was filed sufficient to constitute probable cause for the commence- ment of the malpractice action. We hasten to add, however, that we do not pass upon the question of whether there was medical malpractice, only that there was probable cause to believe so, and that Parker conducted a reasonable investiga- S k tion into the facts prior to filing suit. In conclusion, we hold ?sir. Parker's investigation } r into the facts surrounding-*tr. Terry's complaints developed t sufficient information to support a reasonable and honest belief ~ that Terrv had a tenable claim against nr. Sullivan for medical ~ malpractice. The evidence was therefore insufficient to support ~ the plaintiff's claim for malicious Drosecution. iVe reach this _ conclusion notwithstanding the de€endants' failure to move for a directed verdict at the conclusion of all of the evidence, although they did so. move at the conclusion of_ the plaintiff's case and renewed such motions after trial. Generally?, a defen- dart must hove for a directed verdict at the conclusion of the plaintiff's case and at the conclusion of all of the evidence ~ to preserve the issue of the sufficiency of the evidence for _ ~ appellate review.' Keves Co. v. Shea, 372 So.2d 493 (~'la. 4th ~ DCA 1979). However, we find this case falls within the excen- ~ - tion to this rule delineated in nickard v. Maritime Holdings Corporation, 161 So.2d 239 (Fla. 3rd DCA 1964), where the _g_ a~(~s P~~ sz .