To close 2023, the Nevada Supreme Court concluded that informed consent or assumption of the risk arguments are not proper in a medical malpractice action unless consent is contested. In Taylor v. Brill the patient did not contest that she gave informed consent. She sought to exclude evidence relating to consent from trial, but the district court allowed the doctor to present evidence of the patient's knowledge of the risks and complications associated with the procedure that was performed.
The Supreme Court reversed because whether informed consent was given was not a disputed element at trial. The trial was instead about whether the doctor was negligent. Thus, expert testimony about the risks and complications of the procedure was appropriate because it went to the standard of care for the doctor performing the procedure. However, lay witness testimony and hospital paperwork relating to informed consent and discussing the risks and complications were inadmissible.
Taylor also addressed the burden a personal injury plaintiff has to demonstrate the amounts she was billed for medical care were reasonable and necessary. The district court concluded this required expert testimony, thus the medical bills were excluded. The Supreme Court reversed, concluding that qualified lay witness testimony can meet the reasonable and necessary burden. The patient had offered that testimony, so the bills should have been admissible. This ruling makes it easier for plaintiffs to meet this burden of proof.
Finally, Taylor discussed the collateral source rule, NRS 42.021(1), and evidence of write-downs. The district court had admitted evidence of write-downs for medical bills. This was error because "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." This ruling significantly limits NRS 42.021(1)'s application and value to defendants.
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