New Rules For Proving Past Medical Expenses via Affidavit

Texas Civil Practice and Remedies Code Section 18.001 is a procedural statute which allows a plaintiff to admit affidavits into evidence with their medical billing records that prove-up the reasonableness and necessity of past expenses in a personal injury case. In other words, Section 18.001 allows a plaintiff to establish prove their past medical expenses by affidavit rather than by live expert testimony at trial.

However, the Texas legislature recently passed (and governor Abbot signed) House Bill 1693, which amended chapter 18.001 of the Texas Civil Practice and Remedies Code that governs the admissibility of Medical Billing Records Affidavits and Counter-Affidavits.

These amendments are important because the changes affect the scope of 18.001 medical expense counter-affidavits, applicable deadlines, and required procedure.

It is important to note that these amendments apply to all lawsuits filed on or after September 1, 2019.

The Old Rule

Texas Civil Practice & Remedies Code § 18.001 is a procedural statute providing for the use of affidavits to streamline proof of the reasonableness and necessity of medical expenses. The statute provides that an affidavit that complies with Section 18.001 is sufficient evidence to support a finding of fact by a judge or jury that the amount charged was reasonable or that the service was necessary.

Under the old language of 18.001, a Plaintiff had until 30 days prior to trial to file their affidavits. A Defendant could challenge the affidavits by filing a counter-affidavit (otherwise known as a controverting affidavit) within 30 days of being served with the Plaintiff’s affidavits. However, unless the Defendant filed a proper counter-affidavit, he or she could not contest reasonableness and necessity of the treatment/charges at trial.

The New 18.001 Rules under HB 1693

The new CPRC 18.001 language under HB 1693 basically does two things:

1. The language confirms that an affidavit regarding the reasonableness and necessity of medical bills and services does not support a fact finding that an incident caused a Plaintiff’s injuries; and
2. The language alters the 18.001 deadlines to require the Plaintiff to file any affidavits much earlier in litigation which allows Defendants more time to controvert such affidavits in most cases.
3. Causation under HB 1693

Prior to the passage of H.B. 1693, most Texas courts recognized that uncontroverted affidavits in compliance with Section 18.001 did not substitute for evidence establishing a causal nexus between the defendant’s conduct and the plaintiff’s injuries. Therefore, even if a plaintiff filed such an affidavit, she still had the burden of establishing that her injuries and medical expenses were caused by the tortious acts or omissions of the defendant.

However, H.B. 1693 further clarified the scope of Section 18.001 as to causation, specifically adding the italicized text below:

(b) Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary. The affidavit is not evidence of and does not support a finding of the causation element of the cause of action that is the basis for the civil action.

Moreover, the Texas legislature also clarified the scope of Section 18.001 as to counter-affidavits:

(f) The counter-affidavit must give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counter-affidavit must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit. The counter-affidavit may not be used to controvert the causation element of the cause of action that is the basis for the civil action.

Thus, neither the initial 18.001 affidavit nor the counter-affidavit may address the issue of causation.

In other words, a Plaintiff cannot file an 18.001 affidavit stating that the Plaintiff’s injuries were caused by an accident. Similarly, a Defendant cannot file a controverting affidavit under 18.001 stating that the accident did not cause a Plaintiff’s injuries.

1. New 18.001 Deadlines under HB 1693

In addition to addressing the scope of Section 18.001 affidavits, H.B. 1693 alters the deadlines for both service of initial affidavits and service of counter-affidavits, which include the following:

“The party offering the affidavit in evidence must serve a copy of the affidavit on each other party to the case by the earlier of:

(1) 90 days after the date the defendant files an answer;

(2) the date the offering party must designate any expert witness under a court order; or

(3) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure.”

1. As such, Plaintiffs now must serve their 18.001 affidavits on a Defendant within 90 days of the Defendant filing its Answer.This is important because this is a much quicker deadline than the previous 18.001 language, which allowed the Plaintiff to wait up until 30 days prior to trial.
2. If a Court Orders or a portion of the Texas Rules of Civil Procedure set the Plaintiff’s expert designation deadline earlierthan 90 days after the Defendant files its Original Answer, then the Plaintiff must serve it’s 18.001 affidavit by this earlier expert designation deadline.
3. A Defendant must serve its 18.001 counter-affidavit on Plaintiff within 120 daysafter the Defendant files its Answer.
4. Similarly to the Plaintiff’s rules stated above, if a Court Order for the Texas Rules of Civil Procedure set the Defendant’s expert designation at a time earlier than 120 days after the Defendant’s initial Answer, then the Defendant must likewise serve its counter-affidavit by this earlier
5. If a Plaintiff receives medical treatment from a medical provider for the first timeafter a Defendant files its Answer, then the Plaintiff must serve its 18.001 affidavit for that provider on the Defendant by the Plaintiff’s expert designation deadline set out by Court Order or the Texas Rules of Civil Procedure. If a Defendant receives an affidavit from such a medical provider, then the Defendant has either 30 days or until its expert designation deadline, whichever is later.
6. If a Plaintiff continues to receive medical care from a medical provider after it has served an 18.001 affidavit, then the Plaintiff can submit supplemental 18.001 affidavits, on or before the 60 th day before trial, and a Defendant may file a counter to this supplemental affidavit on or before the 30 th day before trial.

Practical Considerations

1. Plaintiffs now have much faster deadlines to consider when filing a lawsuit. Plaintiffs will need to be prepared with their 18.001 affidavits before filing a lawsuit, as they are now required to serve their affidavits at the onset of the lawsuit (within 90 days of Defendants Answer) or Plaintiffs may be forced to prove that their treatment and expenses were reasonable and necessary at trial by expert testimony which can be extremely expensive.
2. Plaintiffs will need to have all of their medical and billing records and affidavits in advance at much earlier points in the litigation.
3. With the faster deadlines for both Plaintiffs and Defendant, we anticipate seeing more Agreed Scheduling Orders that establish agreed 18.001 and counter-affidavit deadlines.
4. When developing Agreed Scheduling Orders, timing of expert designations and/or agreed 18.001 and counter-affidavit deadlines are going to be crucial. Analyze the continuing care of your client and make sure that experts are designated in such way as to give as much flexibility as possible in provided medical bill affidavits.
5. There are alternative methods of proving past medical expenses (i.e. expert testimony, depositions and/or depositions on written questions) that may need to be employed.

Procedural and/or evidentiary rule changes are most definitely complex and require the skill of an experienced attorney that stays up to date on all of the changes in the applicable laws. Our attorneys at Chandler | Ross, PLLC stay on top of all rule changes that may affect our cases.

With offices in Denton, Dallas, and Fort Worth, Texas, Chandler | Ross, PLLC and our Personal Injury Attorneys are well positioned to provide the most effective and highly-skilled representation possible. Don’t wait, and don’t compromise – contact us today for a Free Case Evaluation and see how we can help you. In most cases, you pay nothing unless settle your case or win a verdict. Contact us now at (940) 800-2500 or Support@ChandlerRossLaw.com to schedule your free personal injury case evaluation and consultation.