ELI" 

CLEP U RI 

BY — MEP DEPUTY CLERK 

MILE -0 

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 a judgment following a jury verdict in a 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. 

'While Judge Carli Lynn Kierny signed the final judgment, the district court 

case was assigned to, and the trial was presided over by, Judge Monica Trujillo. 

7,44- v ? 2. "el 
Taylor 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 of informed 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 the defense itself 

nor evidence of informed 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 of the medical damages they seek 

are reasonable and customary. While an appropriate expert can testify as to the reasonableness of the amount of damages, 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's judgment and remand this 

matter for further proceedings. 

FACTS AND 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 of the uterine perforation and instruct the post-anesthesia 

team to observe her for specific concerns requiring further examination, and failed to apprise her of these coinplications. The matter 
Taylor v. Brill, M.D. 3 

proceeded to a jury trial. Before trial, Taylor sought to exclude any 

references to known risks or complications, as well as hospital documents regarding her informed consent and educating her on the 

risks of the procedure to be performed. The district court ultimately 

ruled that Dr. Brill could introduce evidence of Taylor's knowledge 

of the risks and complications associated with the procedure but 

not her informed consent form. At the conclusion of trial, the jury 

unanimously found in favor of Dr. Brill and denied all of Taylor's 

clairns. Taylor appeals from the final judgment in Docket No. 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 adrn ission 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 decisions to prohibit her from presenting nonexpert evidence in support 

of her damages claim and to allow evidence of insurance writedowns. Finally, we address Taylor's remaining challenge concerning 

the rejection of a portion of Taylor's proposed closing argument. 

Evidentiary decisions 

We review a district court's decision to admit or exclude evidence for an abuse of discretion and will not disturb such a decision 

"absent a showing of palpable abuse." Las Vegas Metro. Police Dep't 

v. Yeghiazarian, 129 Nev. 760, 764-65, 312 P.3d 503, 507 (2013). But 

when an evidentiary ruling rests on a question of law, we review it 

de novo. Davis v. Beling, 128 Nev. 301, 311, 278 P.3d 501, 508 (2012). 

Informed consent and assumption of the risk 

Taylor first challenges the district court's decision to admit evidence of her knowledge of the risks and potential complications of 

her surgery through witness testimony, Taylor's hospital discharge 

instructions, and associated paperwork. Taylor asserts that such evidence is irrelevant in this case because she did not allege that she 

was not informed of the 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 of the procedure and the evidence demonstrated that 

such a complication could occur in the absence of negligence. 

Only relevant evidence is admissible. NRS 48.025; see also Desert Cab Inc. v. Marino, 108 Nev. 32, 35, 823 P.2d 898, 899 (1992). 

Relevant evidence is "evidence having any tendency to make the 
4 Taylor v. Brill, M.D. 

existence of any fact that is of consequence 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 if its 

probative value is substantially outweighed by the danger of unfair 

prejudice, of confusion of the issues or of misleading the jury." 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 circumstances by similarly trained and experienced providers of health care." NRS 41A.015. The plaintiff must establish three 

things: "(1) that the doctor's conduct departed from the accepted 

standard of rnedical care or practice; (2) that the doctor's conduct 

was both the actual and proximate cause of the plaintiff's injury; 

and (3) that the plaintiff suffered darnages." Prabhu v. Levine, 112 

Nev. 1538, 1543, 930 P.2d 103, 107 (1996). 

We have not previously considered whether evidence of informed 

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 of the 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 of consent," a party may seek to present evidence of a plaintiff's informed consent to support it.2 Id. We conclude that such 

evidence and argument is irrelevant to demonstrating that a medical provider conformed to the accepted standard of care 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 that the 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 of care. Brady V. Urbas, 111 A.3d 

1155, 1162 (Pa. 2015); see also N RS 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, if any, performed.-
Taylor v. Brill, M.D. 5 

Even if a plaintiff gave informed consent, that would not "vitiate [a medical provider's] duty to provide treatment according to 

the ordinary standard of care" because "assent to treatment does 

not amount to consent to negligence, regardless of the enumerated 

risks and complications of which the patient was made aware." 

Brady, 111 A.3d at 1162. Other jurisdictions 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 plaintiff dismissed their 

informed consent claim, any signed consent forms "became irrelevant, because assumption of the risk is not a valid defense to a 

claim of medical 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 the jury 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 the jury); Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 

2004) (holding that when a plaintiff does not place consent in issue, 

"evidence of information conveyed to [the plaintiff] concerning 

the risks of surgery in obtaining her consent is neither relevant nor 

material to the issue of the standard of care ... [or] upon the issue 

of causation"). 

Despite the foregoing, certain evidence that may support an 

assumption-of-the-risk defense, such as evidence of the known risks 

and complications of a particular procedure, may help inform a jury 

as it evaluates whether there has been a breach of the accepted standard of care. See Mitchell v. Shikora, 209 A.3d 307, 318 (Pa. 2019) 

("[R]isks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be 

the result of negligence."). Other courts have distinguished between 

inadmissible informed consent evidence—such as consent forms or 

communications between a physician and patient regarding the purpose, nature, and risks of procedures—and admissible evidence of 

the risks and complications of surgery. 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 potential 
6 Taylor v. Brill, M.D. 

to confuse the jury substantially outweighs its probative value. See 

NRS 48.035(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 

of Taylor's discharge instructions and associated paperwork about 

this same subject, inadrnissible. Id. Accordingly, the district court 

abused its discretion by allowing evidence of Taylor'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 the jury 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 services Taylor received 

were reasonable and necessary and were caused by the perforations 

that arose from Dr. Brill's surgical procedure. The district court 

excluded the bulk of the evidence Taylor sought to admit in support 

of her special damages claim—including rnedical bills, testimony 

from health care industry witnesses about those bills, and testimony 

from Taylor herself, who had worked in the medical billing industry 

with both physicians and hospitals for over two decades. The district court relied, in large part, on its finding that testimony about 

the reasonable and customary nature of medical charges was beyond 

the knowledge of a layperson and required an expert. Since Taylor 

proffered no expert to testify that the charges for the medical services she received were usual, customary, or reasonable, the district 

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 attending doctor testified as to the amount that the patient was charged, that he believed 

such charges were reasonable, and that he had no usual and customary fee. 60 Nev. 422, 428, Ill P.2d 53, 56 (1941). But that case does 

not stand for the proposition that evidence of the reasonableness 
Taylor v. Brill, M.D. 7 

of the damages sought can only be proven by an expert witness or 

physician. Here, Taylor presented three witnesses—the CFO of the 

charging hospital, a health care billing representative, and a health 

care customer service billing rnanager—all of whom would have 

testified regarding the charges for the medical treatment provided to 

Taylor. Taylor also sought to testify hersel f on the issue based 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; N RS 48.025. The district court thus abused its 

discretion in excluding this evidence, see Yeghlazarian, 129 Nev. at 

764-65, 312 P.3d at 507, which affected Taylor's substantial rights, 

as it prevented her from proving a prima facia case for damages, 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 of testimony that would have helped prove their prima 

facie case). 

Insurance write-downs 

Although the district court excluded the vast majority of medical 

billing evidence related to Taylor's proposed special damages, it did 

admit evidence related to two lower-cost items of medical billing. 

Taylor challenges the district court's decision to permit Dr. Brill to 

present evidence of insurance write-downs in defending against this 

aspect of her damages claim. The district court based its decision 

on its interpretation of NRS 42.021(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. 

NRS 42.021(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 of the injury or 

death pursuant to . .. any contract or agreement of any group, 

organization, partnership or corporation to provide, pay for or 

reimburse the cost of medical, hospital, dental or other health 

care services. 

N RS 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, if evidence is introduced 

pursuant to subsection (1), the source of the collateral benefits 
8 Taylor v. Brill, M.D. 

cannot "[r]ecover any arnount against the plaintiff . . . or . . . [b]e 

subrogated to the rights of the plaintiff against a defendant." NRS 

42.021(2). This statute was thus intended to prevent a situation where 

a jury would reduce a plaintiff's award based on collateral source 

evidence, but the collateral source would still seek reirnbursement 

from the award. Harper v. 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 of actual benefits paid to the plaintiff by collateral 

sources, and insurance write-downs do not create any payable benefit to the plaintiff. Insurance write-downs are therefore inadmissible 

under NRS 42.021(1). 

Closing arguments 

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 

Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008). 

Taylor sought to make a closing argument "that the jury with its 

verdict should 'send a message' to Defendants that safety 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 the jury to send a message is not prohibited "so 

long as the attorney is not asking the jury 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 the jury, Additionally, expert or physician 
Taylor v. Brill, M.D. 9 

testimony is not required to demonstrate the reasonableness of 

the billing amount of special damages. And evidence of insurance 

write-downs does not fall within the type of evidence NRS 42.021(1) 

makes admissible. The errors made below regarding these issues, 

along with the improper limiting of Taylor's closing argument, warrant reversing the judgrnent in Docket No. 83847 and remanding for 

further proceedings in line with this opinion, including a 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. MacDonald Highlands Realty, LLC, 134 Nev. 570, 579-80, 427 P.3d 104, 112 (2018) 

(recognizing the necessity of reversing a fees and costs order when 

the substantive judgment was being reversed). 

STIGLICH, C.J., and PARRAGUIRRE, J., concur. 

NOTE—As a service to members of the bench and bar, these printed 

advance opinions are mailed out as soon as possible after 

opinions are filed. The court's opinions are subject to modification or withdrawal, including as a result of action taken 

on petitions for rehearing. Any such action taken by the 

court will be noted on subsequent advance sheets. 

This opinion is subject to forrnat revision before publication 

in the Nevada Reports or in the Pacific Reporter. Readers are requested to notify the Supreme Court Clerk of any 

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 her assertions 

that the district court erred in limiting her voir dire, in not admitting into evidence a demonstrative medical device, in not allowing proposed impeachment 

of a defense expert, in the settling ofjury instructions, and in allowing misconduct by defense counsel in closing argument, and we find no errors. 

SPO. CARSON CITY, NEVADA, 2023