Taylor v. Brill ( 2023 )

139 Nev., Advance Opinion St9
IN THE SUPREME COURT OF THE STATE OF NEVADA
KIMBERLY D. TAYLOR, AN No. 83847
INDIVIDUAL,
Appellant,
VS.
KEITH BRILL, M.D., FACOG, FACS, FIILED
AN INDIVIDUAL; AND WOMEN'S
HEALTH ASSOCIATES OF DEC 2 1 2023
SOUTHERN NEVADA-MARTIN PLLC, ELI
CLERY OF
A NEVADA PROFESSIONAL LIMITED BY
IEF DEPUTY CLERK
LIABILITY COMPANY,
Respondents.
KEITH BRILL, M.D., FACOG, FACS, No. 84492
AN INDIVIDUAL; AND WOMEN'S
HEALTH ASSOCIATES OF
SOUTHERN NEVADA-MARTIN PLLC,
A NEVADA PROFESSIONAL LIMITED
LIABILITY COMPANY,
Appellants,
vs.
KIMBERLY D. TAYLOR, AN
INDIVIDUAL,
Respondent.
KEITH BRILL, M.D., FACOG, FACS, No. 84881
AN INDIVIDUAL; AND WOMENS
HEALTH ASSOCIATES OF
SOUTHERN NEVADA-MARTIN PLLC,
A NEVADA PROFESSIONAL LIMITED
LIABILITY COMPANY,
Appellants,
vs.
KIMBERLY D. TAYLOR, AN
INDIVIDUAL,
Respondent.
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Appeals from 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-judgment order denying
attorney fees. Eighth Judicial District Court, Clark County; Monica
Trujillo, Judge,' and Joseph T. Bonaventure, Sr. Judge.
Reversed and remanded.
McBride Hall and Heather S. Hall and Robert C. McBride, Las Vegas.
for Kimberly D. Taylor.
Breeden & Associates, PLLC, and Adam J. Breeden, Las Vegas,
for Keith Brill, M.D., FACOG, FACS, and Women's Health Associates of
Southern Nevada-Martin PLLC.
BEFORE THE SUPREME COURT, STIGLICH, C.J., and HERNDON and
PARRAGUIRRE, JJ.
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 t,.r.assumption of the risk when
the plaintiff does not raise a claim based on lack of informed cobsent. We
conclude that assumption-of-the-risk evidence may be relevant in certain
'While Judge Ca.rli Lynn Kierny signed the final judgment, the
district court case was assigned to, and the trial was presided over by, Judge
Monica Trujillo.
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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 plaintiffs 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 inedical 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 HISTOR Y
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
contamination and to correct what turned óut 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
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also alleged Dr. Brill continued surgery after observing her uterine
perforation, failed to eVahiarte and diaknOgelier intestine perforation, failed
to inform 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
complications. The matter 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 inforrried
consent form. At the conclusion of trial, the jury unanimously found in favor
of Dr. Brill and denied all of Taylor's claims. Taylor appeals from the final
judgment in Docket No. 83847. Dr. Brill and Women's Heath Associates
appeal from certain post-jUdgment orders in consolidated Docket Nos.
84492 and 84881.
DISCUSSION
We first address Taylor's challenge to the district court's
admission of evidence regarding her k.nowledge of the risks associated with
the procedure Dr. Brill perfornied. 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 write-downs. 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
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"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 d.ecision . 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 6ccur in the
absenee 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 (1.992).
Relevant evidence is "evidence havina any tendency to make the 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 41.A.015. The plaintiff must establish three things:. ``(1). that the
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doctor's conduct departed from the accepted standard of medical 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 damages."
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, informed 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
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."
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determine whether a medical professional breached the standard of care.
Brady v. Urbas, 111 A.3d 1155, 1162 (P.a. 015); see also NRS 48.025(2)
(deeming irrelevant evidence inadmissible).
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 Prady, 111 A.3d at 1162. Other
jurisdiction§ are in accord. See, e.g., Hayes v. Camel, 92.7 A.2d 880, 889-90
(Conn. 2007) ("[E]vidence of informed consent, such as consent forms, is
both irrelevant and unduly prejudicial in medical malpractice 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 clairn 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
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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. Shihora, 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
arnbit of NRS 41A.100(1). And courts must analyze on a Ca se-by-ca§e basis
whether the evidence should still be excluded because its •potential to
confuse the jury substantially outweighs its probative value. See NRS
48.035(4 •
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, la.y witness testimony and haspital 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, inadmissible. 14.
Accordingly, the district court abused its discretion by. allowing evidence of
Taylor's knowledge of the procedure's risks and consequences and evidence
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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 renumeration 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.3d 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 medical 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,
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111 P.2d 53, 56 (1941). But that case does not stand for the proposition that
evidence of the reasonableness 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 manager—all of whom would have
testified regarding the charges for the medical treatment provided to
Taylor. Taylor also sought to testify herself 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; NRS
48.025. The district court thus• abused its discretion in excluding this
evidence, see Yeghiazarian, 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.
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NRS 42.021(1) abrogated the common law Collateral source
dcctrine by creating an exception for evidence of collateral source payments
in medical malpractice actions:
In an action for injury or death against a provider
of health care based upon professional negligence,
if the defendant so elects, the defendant may
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.
NRS 42.021(1); see also McCrosky v. Carson Tahoe Reg'l Med. Ctr., 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 cannot "Hecover any amount against the
. or . . . [We 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 reimbursement
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 admission of insurance
write-downs. See Branch Banking & Tr. Co. 1.). Windhaven & Tollway, LLC,
131 Nev. 155, 158-59, 347 P.3d 1038, 1040 (2015) ("Statutes that operate in
derogation of the common 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
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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. Brill] 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
"imploding] 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 manner.
CONCLUSION
Informed consent evidence is inadmissible, and an assumption-
of-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 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
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regarding these issues, along with the improper limiting of Taylor's closing
argument, warrant reversing the judgment in Docket No. 83847 and
remanding for further proceedings in line with this opinion, including a new
trial.3
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).
J.
•We concur:
J.
Parraguirre
have considered Taylor's remaining arguments, including her
3We
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 of jury
instructions, and in allowing misconduct by defense counsel in closing
argument, and we find no errors.
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