ELI" CLEP URI BY— MEPDEPUTYCLERK 

# MILE

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139 Nev., Advance Opinion 56 

## IN THE SUPREME COURT OF THE STATE OF NEVADA

KIMBERLY D. TAYLOR, AN INDIVIDUAL, APPELLANT, V. KEITH BRILL, M.D., FACOG, FACS, AN INDIVIDUAL; AND WOMEN'S HEALTH ASSOCIATES OF SOUTHERN NEVADA-MARTIN PLLC,A NEVADA PROFESSIONAL LIMITED LIABILITY COMPANY, RESPONDENTS. No. 83847
KEITH BRILL, M.D., FACOG, PACS, AN INDIVIDUAL; AND WOMEN'S HEALTH ASSOCIATES OF SOUTHERN NEVADA-MART1N PLLC, A NEVADA PROFESSIONAL LIMITED LIABILITY COMPANY, APPELLANTS, V. KIMBERLY D. TAYLOR, AN INDIVIDUAL, RESPONDENT. No. 84492 er
. KEITH BRILL, M.D., FACOG, FACS, AN INDIVIDUAL; AND WOMEN'S HEALTH ASSOCIATES OF SOUTHERN NEVADA-MARTIN PLLC, A NEVADA PROFESSIONAL LIMITED LIABILITY COMPANY, APPELLANTS, V. KIMBERLY D. TAYLOR, AN INDIVIDUAL, RESPONDENT.
No. 84881
Decernber 21, 2023 Appeals frorn ajudgment followingajury verdict ina medical malpractice action, a post-judgment order granting in part and denying in part a motion to retax and settle costs, and a post-judgrnent order denying attorney fees. Eighth Judicial District Court, Clark County; Monica Trujillo,Judge,' and Joseph T. Bonaventure, Sr. Judge. Reversed and remanded.
Breeden & Associates, PLLC, and Adam.J. Breeden, Las Vegas, for Kimberly D. Taylor.
McBride Hall and Heather S. Hall and Robert C. McBride, Las Vegas, for Keith Brill, M.D., FACOG, FACS, and Women's Health Associates of Southern Nevada-Martin PLLC.

Before the Supreine C01.111, STIGLICH, C.J., and HERNDON and PARRAGUIRRE,JJ.
'WhileJudgeCarli Lynn Kiernysignedthefinaljudgment,thedistrictcourt casewasassignedto,andthetrial was presidedoverby,JudgeMonicaTrujillo.



# 7,4 4- v

# ?2."elTaylor v. Brill, M.D.

OPINION

By the Court, HERNDON, J.: In these appeals, we consider whether defendants to a medical malpractice action may defend by arguing, or otherwise present evidence concerning, the plaintiff's informed consent or assumption of the risk when the plaintiff does not raise a claim based on lack ofinformed consent. We conclude that assumption-of-the-risk evidence may be relevant in certain instances where a plaintiff's consent to the procedure is challenged. But neither thedefense itself

nor evidence ofinformed consent is proper in a medical malpractice action, like this one, where the plaintiff's consent is uncontested. Thus, the district court erred in allowing such arguments and evidence at trial here. We also consider whether a plaintiff must use expert testimony to show that the billing amounts ofthe medical damages they seek

are reasonable and customary. While an appropriate expert can testify as to the reasonableness ofthe amount ofdamages, we hold that expert testimony is not required when other evidence demonstrates reasonableness. The district court abused its discretion by prohibiting such evidence. Based on these errors, and others discussed herein, we reverse the district court'sjudgment and remand this matter for further proceedings.

FACTSAND PROCEDURAL HISTORY Kimberly Taylor, the plaintiff in the lawsuit below, had a hysteroscopy performed by the defendant, Dr. Keith Brill. Dr. Brill perforated Taylor's uterus and bowel during the procedure. Taylor reported escalating pain after the surgery and was twice transported to an emergency room via ambulance. On the second trip, the attending doctor concluded her symptoms were consistent with

an uncontrolled bowel perforation and performed an emergency surgery to remove any contarnination and to correct what turned out to be a three-centimeter perforation. Taylor then filed a medical malpractice action against Dr. Brill and the Women's Health Associates of Southern Nevada-Martin PLLC, amongst others. Taylor alleged that Dr. Brill had breached the standard of care by piercing her uterine wall and small intestine during surgery. Taylor also alleged Dr. Brill continued surgery after observing her uterine perforation, failed to evaluate and diagnose her intestine perforation, failed to inforrn the post-anesthesia

care unit ofthe uterine perforation and instruct the post-anesthesia team to observe her for specific concerns requiring further examination, and failed to apprise her ofthese coinplications. The matterTaylor v. Brill, M.D. 3
proceeded to ajury trial. Before trial, Taylor sought to exclude any references to known risks orcomplications, aswell as hospital documents regarding her informed consent and educating her on the risks ofthe procedure to be performed.The district court ultimately ruled that Dr. Brill could introduce evidence ofTaylor's knowledge ofthe risks and complications associated with the procedure but not her informed consent form. At the conclusion oftrial, thejury unanimously found in favor of Dr. Brill and denied all ofTaylor's clairns.Taylor appeals from the finaljudgment in DocketNo. 83847. Dr. Brill and Women's Heath Associates appeal from certain postjudgment orders in consolidated Docket Nos. 84492 and 84881.
DISCUSSION We first address Taylor's challenge to the district court's adrnission of'evidence regarding her knowledge of the risks associated with the procedure Dr. Brill performed. We then address Taylor's other evidentiary challenges, including to the district court's decisionsto prohibit her from presenting nonexpert evidence in support of her damages claim and to allow evidence of insurance writedowns. Finally, we addressTaylor'sremainingchallenge concerning the rejection ofa portion ofTaylor's proposed closing argument. Evidentiary decisions We review a district court's decision to admit or exclude evidence foran abuse ofdiscretion and will not disturbsuch a decision "absenta showingofpalpable abuse."Las Vegas Metro. PoliceDep't
v. Yeghiazarian, 129Nev.760, 764-65, 312 P.3d 503, 507(2013). But when an evidentiary ruling rests on a question oflaw, we review it de novo. Davis v. Beling, 128Nev.301, 311, 278 P.3d 501, 508 (2012). Informedconsent andassumption ofthe risk Taylor first challenges the district court's decision to admit evidence ofher knowledge ofthe risks and potential complications of her surgery through witness testimony, Taylor's hospital discharge instructions,and associated paperwork. Taylorassertsthat such evidence is irrelevant in this case because she did not allege that she
was not informed ofthe risks associated with her procedure or that Dr. Brill failed to obtain her consent. Dr. Brill contends that the evidence is relevant because the complication she experienced was a known risk ofthe procedure and the evidence demonstrated that such a complication could occur in the absence ofnegligence. Only relevant evidence is admissible. NRS48.025;seealso Desert Cab Inc. v. Marino, 108 Nev. 32, 35, 823 P.2d 898, 899 (1992). Relevant evidence is "evidence having any tendency to make the4 Taylor v. Brill, M.D.

existence ofany fact that is ofconsequence to the determination of the action more or less probable than it would be without the evidence." NRS 48.015. But relevant evidence is "not admissible ifits probative value is substantially outweighed by the danger ofunfair prejudice,ofconfusion ofthe issues orofmisleadingthejury."NRS 48.035(1). To succeed in a professional negligence action, a plaintiff must prove that, in rendering services, a health care provider failed "to
use the reasonable care, skill or knowledge ordinarily used under similar circumstancesby similarly trained and experienced providers ofhealth care."NRS41A.015. The plaintiffmust establish three things: "(1) that the doctor's conduct departed from the accepted standard ofrnedical care or practice; (2) that the doctor's conduct
was both the actual and proximate cause ofthe plaintiff's injury; and (3) that the plaintiff suffered darnages." Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996). We havenot previously considered whetherevidence ofinformed consent is relevant, or if an assumption-of-the-risk defense is proper, in a professional negligence action. Generally, the first two elements of such an action—deviation from the standard of
care and medical causation--are shown by evidence consisting of"expert medical testimony, material from recognized medical texts or treatises or the regulations ofthe licensed medical facility wherein the alleged negligence occurred." NRS 41A.100(1). An assumption-of-the-risk defense, on the other hand, requires proof of"(1) voluntary exposure to danger, and (2) actual knowledge of the risk assumed."Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 71, 358 P.2d 892, 894 (1961) (quoting Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (1958)). As the defense "is founded on the theory ofconsent,"a party may seek to present evidence ofa plaintiff's informed consent to support it.2 Id. We conclude that such evidence and argument is irrelevant to demonstrating that a medical providerconformed tothe accepted standard ofcare or to refute medical causation when defending against a medical malpractice claim. See NRS 41A.100(1). Indeed, inforrned consent evidence "does not make it more or less probable thatthe physician was negligent in

. .. performing [the surgery) in the post-consent timeframe" and is therefore inadmissible to determine whether a medical professional breached the standard ofcare. Brady V. Urbas, 111 A.3d 1155, 1162 (Pa. 2015); see also NRS 48.025(2) (deeming irrelevant evidence inadmissible).

2Dr. Brill argues he did not present such a defense, but his answer to the complaint includes the affirmative defense that Taylor "assumed the risks of the procedures, ifany, performed.-Taylor v. Brill, M.D. 5

Even ifa plaintiff gave informed consent, that would not "vitiate [a medical provider's] duty to provide treatment according to the ordinary standard ofcare" because "assent to treatment does not amount to consent to negligence, regardless ofthe enumerated risks and complications of which the patient was made aware." Brady, 111 A.3d at 1162. Otherjurisdictions are in accord.See, e.g., Hayes v. Camel, 927 A.2d 880, 889-90 (Conn. 2007) ("[E]vidence of informed consent, such as consent forms, is both irrelevant and unduly prejudicial in medical rnalpractice cases without claims of lack of informed consent"); Baird v. Owczarek, 93 A.3d 1222, 1233 (Del. 2014) (concluding that once the plaintiffdismissed their informed consent claim, any signed consent forms "became irrelevant, because assumption of the risk is not a valid defense to a claim ofmedical negligence, and because [such evidence] is neither material [n]or probative of whether [the doctor] met the standard [of] care" (citation omitted)); Wilson v. P.B. Patel, MD., P.C., 517 S.W.3d 520, 525 (Mo. 2017) (concluding that such evidence would mislead thejury that the plaintiff consented to injury); Waller v. Aggarwal, 688 N.E.2d 274,275-76 (Ohio App. Ct. 1996)(recognizing that informed consent evidence is generally irrelevant because it does "not grant consent for the procedure to be performed negligently [or] waive appellant's right to recourse in the event the procedure was performed negligently" and that it has the potential to confuse thejury); Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 2004)(holdingthat when a plaintiffdoesnot place consent in issue, "evidence of information conveyed to [the plaintiff] concerning the risks ofsurgery in obtaining her consent is neither relevant nor material to the issue ofthe standard ofcare
... [or] upon the issue ofcausation"). Despite the foregoing, certain evidence that may support an assumption-of-the-risk defense,such asevidence ofthe known risks andcomplicationsofa particular procedure,may help inform ajury
as itevaluates whetherthere hasbeen a breach oftheaccepted standard ofcare. See Mitchell v. Shikora, 209 A.3d 307, 318 (Pa. 2019) ("[R]isks and complications evidence may assist thejury in determining whether the harm suffered was more or less likely to be the result ofnegligence.").Other courts have distinguishedbetween inadmissible informed consent evidence—such as consent formsor communicationsbetween a physician and patient regardingthe purpose, nature, and risks ofprocedures—and admissible evidence of the risks and complications ofsurgery. See id. at 316-18. However, evidence of a procedure's risks must still fall within the ambit of NRS 41A.100(1). And courts must analyze on a case-by-case basis whether the evidence should still be excluded because its potential6 Taylor v. Brill, M.D.

to confuse thejury substantially outweighs its probative value. See NRS48.035(1). Since expert witness testimony may establish the standard of
care and breach, the testimony regarding risks and complications of the procedure by Taylor's and Dr. Brill's retained experts was admissible. See NRS 41A.100(1). However, lay witness testimony and hospital literature are generally not suitable for this purpose, making the testimony by Taylor and Dr. Brill, as well as portions ofTaylor's discharge instructions and associated paperwork about this same subject, inadrnissible. Id. Accordingly, the district court abused its discretion by allowing evidence ofTaylor's knowledge of the procedure's risks and consequences and evidence probative of Taylor's informed consent. And we are not convinced that the limiting instruction given to thejury cured the prejudice resulting from this error. Special damages Taylor sought special damages as remuneration for the medical services she underwent following her injury from the surgery performed by Dr. Brill. To be entitled to special damages, Taylor had to demonstrate that the amounts she was billed were reasonable and necessary. See Pizzaro-Ortega v. Cervantes-Lopez, 133 Nev. 261, 266, 396 P.3c1 783, 788 (2017). The necessity of the medical services Taylor received after Dr. Brill's allegedly negligent surgery was not contested in the trial court. Taylor's retained expert, Dr. Berke, clearly testified that the medical servicesTaylor received
were reasonable and necessary and were caused by theperforations that arose from Dr. Brill's surgical procedure. The district court excluded thebulk ofthe evidence Taylor sought to admit in support of her special damages claim—including rnedical bills, testimony from health care industry witnessesabout thosebills,and testimony from Taylorherself,whohad worked in the medical billingindustry with both physicians and hospitals for over two decades. The district court relied, in large part, on its finding that testimony about thereasonable and customarynatureofmedical chargeswasbeyond the knowledge ofa layperson and required an expert. Since Taylor proffered no expert to testify that the charges for the medical servicesshe received were usual,customary,orreasonable,thedistrict court excluded them. In doing so, the district court relied on Curti
v. Franceschi, which held that an award for medical services was supported by substantial evidence where the attendingdoctor testified as to the amount that the patient was charged, that he believed such charges were reasonable, andthat he had no usual and customary fee. 60Nev. 422, 428, Ill P.2d 53, 56 (1941). But that case does not stand for the proposition that evidence of the reasonablenessTaylor v. Brill, M.D. 7

ofthe damages sought can only be proven by an expert witness or physician. Here, Taylor presented three witnesses—the CFO ofthe charging hospital, a health care billing representative, and a health
care customer service billing rnanager—all ofwhom would have testified regardingthe charges forthe medical treatment provided to Taylor.Tayloralsosoughttotestifyherselfon the issuebased in part
on her experience working in the medical billing industry for over two decades. This information was relevant and therefore admissible. NRS 48.015; NRS 48.025. The district court thus abused its discretion in excludingthisevidence,see Yeghlazarian, 129 Nev. at 764-65, 312 P.3d at 507, which affected Taylor's substantial rights,
as it prevented her from provinga prima facia case fordamages,see Brown v. Capanna, 105 Nev. 665, 672, 782 P.2d 1299, 1304 (1989) (holding that an appellant's substantial rights were affected by the exclusion oftestimony that would have helped prove their prima facie case).
Insurance write-downs Although the district court excluded the vast majority ofmedical billingevidence related toTaylor's proposed special damages, it did admit evidence related to two lower-cost items ofmedical billing. Taylor challenges the district court's decision to permit Dr. Brill to present evidence ofinsurance write-downsin defendingagainst this aspect ofher damages claim. The district court based its decision
on its interpretation ofNRS42.021(1);therefore,the issue presented is one of law that we review de novo. See Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014) (recognizing that statutory interpretation questions are issues of law); Davis, 128 Nev. at 311, 278 P.3d at 508. NRS42.021(1) abrogated the common law collateral source doctrine by creating an exception for evidence of collateral source payments in medical rnalpractice actions: ln an action for injury or death against a provider of health
care based upon professional negligence, if the defendant so elects, the defendant rnay introduce evidence of any amount payable as a benefit to the plaintiff as a result ofthe injury or death pursuant to

. .. any contract or agreement ofany group, organization, partnership or corporation to provide, pay for or reimburse the cost ofmedical, hospital, dental or other health
care services. NRS 42.021(1); see also McCrosky v. Carson Tahoe Reg'l Med. Cir., 133 Nev. 930, 936, 408 P.3d 149, 154-55 (2017) (discussing the change from common law). However, ifevidence is introduced pursuant to subsection (1), the source of the collateral benefits8 Taylor v. Brill, M.D.

cannot "[r]ecover any arnount against the plaintiff

. . . or
. . . [b]e subrogated to the rights ofthe plaintiff against a defendant." NRS 42.021(2).Thisstatutewasthus intended topreventa situationwhere
ajury would reduce a plaintiff's award based on collateral source evidence, but the collateral source would still seek reirnbursement from the award. 

### Harperv. Copperpoint Mut. Ins. Holding Co., 138 Nev., Adv. Op. 33, 509 P.3d 55, 60 (2022) (citing 

### McCrosky, 133 Nev. at 936, 408 P.3d at 155). Construing this statute narrowly, we conclude that the district court erred in finding that the statute permitted the adrnission of insurance write-downs. 

### See Branch Banking & Tr. Co. v. Windhaven & Tollway, LLC, 131 Nev. 155, 158-59, 347 P.3d 1038, 1040 (2015) ("Statutes that operate in derogation of the cornmon law should be strictly construed

. . . ."). NRS 42.021(1) contemplates evidence only ofactual benefits paid to the plaintiff by collateral sources,and insurancewrite-downsdonotcreateany payablebenefit tothe plaintiff. Insurance write-downs aretherefore inadmissible under NRS42.021(1). 

### Closingarguments Lastly, Taylor asserts that the district court improperly limited her closing arguments. We review de novo whether an attorney's comments would constitute misconduct. 

### Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d 1068, 1078 (2009);

### see also Liocev. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008). Taylor sought to make a closing argument "that thejury with its verdict should 'send a message' to Defendants thatsafety is important, that [Dr. 13rill] must answer for the injury he caused to his patient, and that he cannot be careless toward his patient, etc." In denying this request, the district court stated that Taylor "shall not be permitted to use the phrase 'send a message[ ]'

. . . in closing argument." But Taylor's argument was not inappropriate because it
was based on the evidence in the case, rather than "implor[ing] the jury to disregard the evidence." 

### Capanna, 134 Nev. at 890-91, 432 P.3d at 731. Asking thejury to send a message is not prohibited "so long as the attorney is not asking thejury to ignore the evidence." 

### Id. (quoting 

### Pizarro-Ortega, 133 Nev. at 269, 396 P.3d at 790). The district court therefore erred in limiting Taylor's closing argument in this rnanner. 

### CONCLUSION Informed consent evidence is inadmissible, and an assumptionof-the-risk defense is improper, in professional negligence suits when the plaintiff does not challenge consent, as it serves only to confuse and mislead thejury, Additionally, expert or physicianTaylor v. Brill, M.D. 9
testimony is not required to demonstrate the reasonableness of the billing amount ofspecial damages. And evidence ofinsurance write-downsdoesnot fall within the typeofevidenceNRS42.021(1) makes admissible. The errors made below regarding these issues, alongwith the improper limiting ofTaylor'sclosingargument,warrant reversingthejudgrnent in DocketNo. 83847and remanding for furtherproceedings in line with thisopinion, includinga new trial,' Because we reverse the underlying judgment, we necessarily reverse the order granting in part and denying in part Taylor's motion to retax and settle costs in Docket No. 84492 and the order denying Dr. Brill's request for attorney fees in Docket No. 84881. See Frederic & Barbara Rosenberg Living Tr. v. MacDonaldHighlands Realty, LLC, 134 Nev. 570, 579-80, 427 P.3d 104, 112 (2018) (recognizingthe necessity ofreversing a fees and costs order when the substantivejudgment was being reversed). STIGLICH, C.J., and PARRAGUIRRE, J., concur.

NOTE—Asaserviceto members ofthe bench and bar, these printed advance opinions are mailed out as soon as possible after opinions are filed. The court's opinions are subject tomodification orwithdrawal, includingas aresultofaction taken
on petitions for rehearing. Any such action taken by the court will be noted on subsequent advance sheets. Thisopinion is subjectto forrnatrevision before publication in the Nevada Reports or in the Pacific Reporter. Readers are requested to notify the Supreme Court Clerk ofany typographical or other formal errors so that corrections rnay be made before they go to press. The Clerk may be contacted by mail at 201 South Carson Street, Carson City, Nevada 89701-4702, by telephone at (775) 684-1600, or by email at nvscclerk@nvcourts.nv.gov

. ELIZABETH A. BROWN, Clerk

'We have considered Taylor's remaining arguments, including herassertions that the district court erred in limiting her voir dire, in not admitting into evidence a demonstrativemedical device, in not allowingproposed impeachment ofa defenseexpert, in the settlingofjury instructions,and in allowingmisconduct by defense counsel in closing argument, and we find no errors.
SPO. CARSON CITY, NEVADA, 2023