Houston, Texas (July 29, 2021) -  The Texas Supreme Court recently clarified the rules related to medical billing counter affidavits, under Section 18.001 of the Texas Civil Practice and Remedies Code, and restored fair balance to the dispute of reasonable medical charges. In re Allstate Indem. Co., 622 S.W.3d 870 (Tex. 2021).

In Texas, in order to recover past medical expenses, a plaintiff must prove that the treatment received and the costs incurred were reasonable and necessary. Section 18.001 of the Texas Civil Practice & Remedies Code allows a plaintiff to establish the reasonableness and necessity of their past medical expenses, by filing with the court an 18.001 Affidavit from their medical providers, stating that the services received were necessary and the amount charged for same were reasonable. Absent this exception, the general rule would apply and a plaintiff would be required to offer expert testimony at trial to prove the reasonableness and necessity of their past medical expenses. A defendant would rebut the plaintiff's experts at trial by offering their own expert testimony to the contrary.

Once a plaintiff files an affidavit, pursuant to Sections 18.001(b) and 18.001(f), a defendant must file a counter affidavit in order to controvert the reasonableness and necessity of the treatment charges reflected in the plaintiff's affidavits. As such, Section 18.001 effectively saves all parties time and litigation costs by removing the need for in-person testimony on this issue at trial.

The statute is clear that the counter affidavit must be made by a person who is qualified by knowledge skill, experience, training, education, or other expertise to testify as to the contents of the counter affidavit. However, the plaintiffs' bar across the state began systematically striking counter affidavits, alleging that the affidavits did not comply with the statutory requirement and asserting that a medical billing expert was not qualified to testify as to the specific medical field that made the basis of the affidavit. As a result of the counter affidavit being struck, defendants were then precluded by the court from presenting any evidence at trial to oppose the reasonableness of the medical charges included in the initial affidavit. In essence, defendants were rendered unable to challenge the reasonableness of plaintiffs' past medical expenses. These underlying trial court rulings were then upheld by several Texas appellate courts.

To provide clarity on the statute and put an absolute stop to this incorrect practice, the Texas Supreme Court stepped in with In re Allstate, holding that Section 18.001(f) does not require a witness to specialize in the field of medicine that made the basis of the controverting affidavit, and found that a nurse with several years of medical billing and coding experience was indeed qualified to testify as to the reasonableness of medical charges. Further, the court clarified that the statute does not require the opinions expressed in the counter affidavit to meet the admissibility standards regarding expert testimony under Texas Rule of Evidence 702 and Robinson. Therefore, the Texas Supreme Court held that a trial court may not strike a counter affidavit on the basis that it contains conclusory or unreliable opinions, so long as the affiant is qualified and the other party is given reasonable notice of the basis on which the party serving it intends to controvert the initial affidavit. Further, the court explained that the "reasonable notice" requirement in the statute is similar to Texas' fair notice pleading standard, which means enough information to ascertain the nature and basic issues in controversy.

Finally, the Texas Supreme Court confirmed that, even if a court strikes a controverting affidavit, a defendant is not precluded from disputing and presenting evidence of reasonableness and necessity at trial. Critically, the court affirmed mandamus relief was appropriate in such a situation whereby a court precludes a defendant from disputing reasonableness of medical damages, and that a post-judgment appeal is not an adequate remedy.

Procedurally speaking, if controverting affidavits were struck pre In re Allstate, a motion for reconsideration should be filed, and if still denied, a mandamus should be filed. The Texas Supreme Court has already denied two petitions for writ of mandamus on these issues, stating that the trial courts should be given the opportunity to reconsider its orders striking the controverting affidavits in light of the In re Allstate decision. In re Parks, No. 20-0345, 64 Tex. Sup. Ct. J. 1576, 2021 Tex. LEXIS 638 (June 25, 2021). In re Savoy, No. 20-0843, 64 Tex. Sup. Ct. J. 1594, 2021 Tex. LEXIS 631 (June 25, 2021).

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