dissenting:
I agree with the majority that the district court has discretion to exclude relevant evidence that is highly prejudicial. See NRS 48.035. However, the district court abuses its discretion when it excludes critical evidence that the plaintiff needs to prove an essential element of his disputed claim. See McCourt v. J.C. Penney Co., 103 Nev. 101, 103, 734 P.2d 696, 698 (1987) (“where the facts are sharply disputed and the matter is tried to the jury, and there is proper foundation shown, the court should allow the evidence”).
Here, Hansen claimed that he did not give his informed consent for Dr. Thalgott to attach a metal plate to Hansen’s spine using bone screws, a medical procedure that had not been approved by the FDA.1 In support of his claim, Hansen proffered evidence that the words “non-FDA approved” were handwritten on Hansen’s informed consent form and noted fourteen times on Hansen’s medical chart. Despite the fact that this evidence was necessary to prove that Dr. Thalgott did not adequately inform Hansen of the risks associated with the procedure, the court redacted any references to the “non-FDA approved” status of Hansen’s medical procedure from his consent form, medical chart, and even went so fair as to prohibit any witness from mentioning the procedure’s “non-FDA approved” status. Hansen could not ask Dr. Thalgott why he added the “non-FDA approved” notation on the consent form, what the significance was of a surgical procedure not being FDA approved, and what Dr. Thalgott told Hansen of the risks involved in the non-FDA approved surgery when he made the additional notation. Since *30Hansen’s claim was that Dr. Thalgott performed an experimental surgery on him without adequately informing him of the surgery and its risks, the unedited consent and this cross-examination would have been highly relevant and material. Essentially, because the district court actually edited Hansen’s consent form and medical charts, redacting out an essential term, the jury got an artificial version of the consent process. I dissent because altering a key term in a document that proves an essential issue in a case is an abuse of discretion.
Additionally, the district court excluded a State Industrial Insurance System audit made in the normal course of business that documented that only seven out of forty-five of Dr. Thalgott’s patients who had the same metal plate as Hansen attached to their spines recovered enough to return to the workforce. I disagree with the majority that this evidence was “collateral” and would “confuse the issues” in this case. This evidence was relevant similar-act evidence admissible to prove that Dr. Thalgott’s negligence caused Hansen’s severe and debilitating injuries. See Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d 135, 139 (1970) (evidence of subsequent, similar incidents is admissible to establish causation). After all, an objective government agency report noting that Dr. Thalgott’s non-FDA approved steel plate procedure was successful only approximately fifteen percent of the time is highly relevant as to whether he acted within the standard of care. This statistical evidence is not collateral, and thus the district court abused its discretion in preventing Hansen from telling the jury about the other thirty-seven times Dr. Thalgott had performed this non-FDA approved procedure, and failed to return his patient to the workforce.
By its ruling, the district court prevented Hansen from mentioning an essential term on the consent form that he signed and from discussing numerous complications sustained by Dr. Thalgott’s other patients who had the steel plate attached to their spine. By sanctioning these rulings, the majority opinion is permitting the district court to selectively edit crucial documents and preventing a party from establishing the major adverse consequences of a medical procedure by using public records.
Accordingly, I respectfully dissent, and I would reverse the judgment and remand for a new trial.
In fact, after Hansen’s medical procedure, the FDA prohibited medical doctors from attaching this metal plate to spines because of the risks associated with the procedure.