Supreme Court of Texas Clarifies Counter Affidavit Standards in Medical Cost Disputes


The Supreme Court of Texas recently defined standards for counter affidavits in a case involving a nurse disputing the plaintiff’s medical charges in a Chapter 18 affidavit.

The court determined a counter affidavit requires no more than sufficient information to allow a prepared response from the plaintiff in a case. The court also established that the opinions of medical experts do not need to be reliable under Chapter 18 with a trial court committing abuse of discretion if it incorporates a reliability requirement.

The case In re Allstate Indemnity Company, 2021 WL 1822946 (Tex. May 7, 2021) set the stage for the latest opinion regarding affidavits served pursuant to Chapter 18.001 of the Texas Civil Practice and Remedies Code. The defendant had challenged reasonableness, but not the necessity of the treatment, in a Chapter 18 affidavit filed by the plaintiff. In Allstate, the counter affidavit was prepared by a nurse with experience in coding for medical services. She compared the CPT (Current Procedural Terminology) codes to the amounts billed. The Supreme Court of Texas noted that CPT codes are “standardized throughout the country.” The plaintiff argued that the nurse’s controverting affidavit did not provide reasonable notice for the bases of her conclusions and that her opinions were unreliable, because the counter affidavit could not meet the requirements of Rule 702 regarding expert opinions. The plaintiff also argued that the nurse was not qualified.

The trial court rejected the counter affidavit and prohibited the nurse from offering testimony at trial. The trial court also ruled that the defendant could not challenge the reasonableness and necessity of the plaintiff’s medical charges.

The Supreme Court of Texas determined that the reasonable-notice standard in section 18.001 was similar to the fair-notice pleading standard under Rule 47. Accordingly, a counter affidavit provides “reasonable notice” if it gives the opposing party sufficient information to prepare a response or defense. The Court noted that the plaintiff’s “ability to fully develop her attack on the reliability of the nurse’s methodology is ample evidence that the counter affidavit provides reasonable notice for the defendant’s challenges.”

Regarding the allegation that the nurse’s opinions were unreliable, the Court rejected the plaintiff’s argument, stating that “determining whether a counter affidavit meets section 18.001(f)’s reasonable-notice standard does not require a court to assess reliability of the expert’s opinions under Rule 702 or [a] Robinson [challenge].”

Finally, the Court expressly rejected the trial court’s determination that an uncontroverted affidavit precluded any right to challenge the affidavit at the time of trial as to reasonableness and necessity.

Prior to this ruling, appellate courts held that Chapter 18 affidavits served a limited purpose, a shortcut, an exception to the hearsay rule that allowed plaintiffs to submit reasonable bills to the jury without offering any testimony. It allowed the exclusion of evidence upon proper objection in the absence of a controverting affidavit. Chapter 18 was a procedural rule that did not cut off a plaintiff’s right to recover reasonable medical expenses. At the same time, a counter affidavit was also procedural. If one was filed, the plaintiff was forced to present reasonable evidence through expert testimony.