Section 18.001 of the Texas Civil Practice and Remedies Code allows a claimant to submit to the jury the issue of the reasonableness of medical expenses without the need for an expert by filing a statutorily compliant affidavit. The defendant may avoid this abbreviated procedure by filing a statutorily compliant counter-affidavit.
Three questions arose under the statutory provision, each engendering division among the lower courts.
First, defendants frequently presented counter-affidavits from nurses experienced in medical coding and billing. The lower courts reached differing conclusions over whether these non-physician witnesses were competent to provide testimony concerning the reasonableness of medical expenses.
Second, some courts held that a witness controverting the reasonableness of medical expenses through a counter-affidavit must meet the admissibility requirements imposed on expert witnesses. But other courts reached the opposite result.
Finally, some intermediate appellate courts held that a defendant’s failure to controvert a medical-expense affidavit through a statutorily compliant counter-affidavit resulted in an inability to contest reasonableness at trial. These courts concluded that a failure to controvert the affidavit not only relieved the plaintiff of calling an expert witness at trial but precluded the defendant from introducing any evidence controverting the reasonableness of the expenses. But at least one intermediate court reached the opposite conclusion, holding that the statute established only a procedural mechanism and not an exclusionary rule.
The Texas Supreme Court resolved all three issues in In re Allstate Indemnity Co., (No. 20-0071), decided on May 7, 2021.
First, the Court held that a nurse with experience in medical billing and coding could provide an affidavit controverting the reasonableness of medical expenses.
Second, the Court held that the general requirements for admissibility of expert witnesses do not apply to a controverting affidavit on the reasonableness of medical expenses under section 18.001.
Finally, the Court held that section 18.001 provides only a procedural mechanism for a claimant’s initial proof of reasonableness—it does not prohibit the defendant from introducing controverting evidence at trial.
The Court’s ruling brings much-needed clarity to the operation of section 18.001 and a defendant’s ability to contest the reasonableness of attorney’s fees both at the pretrial and trial stages.