by Stacy Thompson
The Texas legislature recently passed (and governor Abbot signed) House Bill number 1693, which amended §18.001 of the Civil Practice and Remedies Code — the portion of the Civil Practice and Remedies Code that governs affidavits and counter-affidavits regarding the reasonableness and necessity of medical services. The amendments provide critical clarity to several key issues faced by defendants litigating personal injury matters — including the scope of counter-affidavits, applicable deadlines, and procedure.
I. Overview of Texas Civil Practice & Remedies Code § 18.001.
Texas Civil Practice & Remedies Code § 18.001 is a procedural statute prescribing the use of affidavits to simplify proof that medical expenses are reasonable and necessary. An affidavit satisfying the requirements contained in Section 18.001 serves as sufficient evidence to support a jury finding that the amount charged for the medical treatment was reasonable or that the service was necessary. The statute specifically indicates that these affidavits can be controverted which requires that plaintiff prove reasonableness and necessity by legally sufficient evidence at trial. Filing a proper controverting affidavit forces the offering party to prove reasonableness and necessity by expert testimony at trial.
II. Section 18.001 Counter-affidavits.
Prior to the passage of H.B. 1693 in 2019, the majority of Texas courts recognized that uncontroverted affidavits did not establish causation between the defendant’s tortious conduct and the plaintiff’s medical expenses. Therefore, regardless of whether an affidavit was filed, plaintiffs had to establish their medical expenses were necessitated by the negligent conduct of acts or omissions of defendant.
In drafting H.B. 1693, the Legislature added specific language clarifying that 18.001 affidavits are not evidence of and do not support a finding of causation. Similarly, the Legislature clarified that counter-affidavits cannot be used to controvert the causation element of a civil cause of action.
III. Relevant Deadline Changes.
In addition, H.B. 1693 alters the deadlines for both service of initial affidavits and service of counter-affidavits. “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.” Tex. Civ. Prac. & Rem. Code 18.001 (d). This change requires plaintiffs to serve 18.001 affidavits more than 30 days before trial.
Regarding counter-affidavits, the statute’s amended language provides counter-affidavits must be served by the earlier of: (1) 120 days after the date the defendant files its answer; (2) the date the party offering the counter-affidavit must designate expert witnesses under a court order; or (3) the date the party offering the counter-affidavit must designate any expert witness as required by the Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code 18.001 (e).
In sum, defendant must controvert within 30 days of being served with plaintiff’s affidavit.
IV. Changes to Filing Requirements.
For the first time, the Legislature also addressed the relationship between the filing of affidavits and the beginning of medical treatment. Under the new amendments, if a plaintiff receives medical treatment from a medical provider for the first time after 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. Tex. Civ. Prac. & Rem. Code 18.001 (d-1). 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.
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 60th day prior to the commencement of trial, and a defendant may file a counter to this supplemental affidavit on or before the 30th day before the commencement of trial.
V. Alterations to Procedure Providing Notice.
Plaintiffs routinely “served” medical cost affidavits inconspicuously attached to disclosures or other production or piecemealed them throughout the discovery process. The Legislature has seemingly put a stop to this practice by now requiring “[t]he party offering the affidavit to file notice with the clerk of the court when serving the affidavit that the party or the attorney served a copy of the affidavit…” In sum, plaintiff attorneys must file a notice via the electronic filing system that §18.001 affidavits were served. Similarly, the party offering a counter-affidavit must also file notice when serving the counter-affidavits.
H.B. 1693 does not clarify whether individuals other than medical doctors within the specific field of medical care produced in the initial affidavit may opine as to the reasonableness and necessity of medical expenses, leaving a looming question unanswered. In other words, whether chiropractors can opine on care rendered by a pain management physician remains unclear. See also Gunn v. McCoy, 554 S.W.3d 645 (2018) (holding the plain language of § 18.001 does not require affidavits be made by a records custodian for a medical provider); In re Brown, 2019 WL 1032458 (Tex. App.—Tyler 2019) (holding mandamus was appropriate for trial court’s striking of counter-affidavits filed by defendant and counter-affidavits completed by nurse were sufficient under §18.001.
VI. Takeaways and Practical Considerations
- Plaintiffs can no longer simply wait to submit 18.001 affidavits 30 days prior to evidence being submitted at trial. If a plaintiff was treating with a provider prior to a defendant filing an Answer, the plaintiff is required to serve its affidavit within 90 days of defendants Answer or plaintiff will be required to prove the care and expenses were reasonable and necessary at trial.
- Defendants (and their insurers) should begin seeing more complete sets of medical records and bills at earlier points in litigation.
- Since the new 18.001 language places stricter deadlines on plaintiffs, we anticipate seeing more Agreed Scheduling Orders from plaintiffs and defendants that establish agreed 18.001 deadlines, which will make life easier for all litigants.