SECTION 18.001 COUNTERAFFIDAVITS ON MEDICAL BILLING RECORDS
Litigants involved in motor vehicle accidents often seek to recover expenses related to their medical treatment. Many litigants rely on an “expedited” process to prove up their medical charges. As detailed below, unwary defense attorneys may fall into a procedural trap in the event they fail to timely locate a qualified medical expert to review medical records.
I. Plaintiff’s Procedure in Proving Medical Expenses
Plaintiffs generally rely on Section 18.001 of the Texas Civil Practice and Remedies Code in proving the reasonableness and necessity of past medical expenses.[1] In order to comply with this section, a plaintiff must file an affidavit stating that the medical expenses incurred were: (1) reasonable; (2) at the time and place that the service was provided; and (3) that the service was necessary.[2] The affidavit must be made by either the person who provided the service[3] or the person in charge of records[4] showing the service provided and charge made, and the affidavit must include an itemized statement for the services and charges.[5] The amount listed on the affidavit must be the amount actually paid by the plaintiff, and not simply the amount the provider billed the plaintiff.[6]
Generally speaking, Section 18.001 is purely procedural, providing for the use of affidavits to streamline proof of the reasonableness and necessity of medical expenses. Thus, the affidavits are not conclusive; the statute expressly provides that they can be controverted by a competing affidavit.[7] If a proper counteraffidavit is not served, the Section 18.001 affidavit offered by the plaintiff is prima facie evidence of the past medical expenses.[8]
II. Section 18.001 Counteraffidavits
If an opposing party intends to controvert a claim reflected by an initial affidavit, the opposing party must serve a counteraffidavit.[9] There are two main requirements for a counteraffidavit: (1) it must give reasonable notice of which claims the opponent intends to controvert and why, and (2) it must be made by a person who is qualified to testify about all or part of any of the matters contained in the initial affidavit.[10] The statute specifies that the counteraffidavit 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 within the initial affidavit.[11] Notably, the statute places no such qualification requirement on initial affidavits. Thus, the statute has been held to place a greater burden of proof on counteraffidavits to discourage their misuse in a manner that frustrates the intended savings contemplated by Section 18.001.[12]
Section 18.001 places a relatively short response deadline for counteraffidavits. A party intending to controvert a plaintiff’s Section 18.001 affidavit must serve a counteraffidavit on each other party not later than thirty (30) days after the day the party receives a copy of the affidavit. This deadline may be extended by the court or upon agreement of the parties.
III. How NextMed Reviews Can Assist
The crux of NextMed’s business is locating qualified doctors that can review medical billing records for reasonableness and necessity. NextMed works with an ever-growing portfolio of qualified doctors to fill client needs. In order to ensure that each doctor is appropriately qualified, we require that all participating doctors be board certified in at least one specialty area. We will locate a doctor in any specialty area to review medical billing records in the rare event that NextMed does not currently work with a doctor in the desired specialty area. Call us today at 713.487.5280 to find out how NextMed may be able help in your next case.
[1] Prior to the enactment of Section 18.001, plaintiffs were required to prove up medical expenses through expert testimony. In re Brown, No. 12-18-00295-CV (Tex. App.—Tyler, March 5, 2019, no pet.). In other words, a medical provider's Section 18.001 affidavit can save the plaintiffs the expense of having to hire an expert to testify that their medical expenses were reasonable and necessary. Id.[2} Tex. Civ. Prac. & Rem. Code §18.001.[3] This would generally be the treating physician.[4] The person in charge of records would likely be the custodian of records for the treating physician.[5] Id. [6] Gunn vs. McCoy, 554 S.W.3d 645, 672 (Tex. 2018). [7] Tex. Civ. Prac. & Rem. Code §18.001.[8] Id. However, a proper Section 18.001 affidavit filed by a Plaintiff is not conclusive. The affidavit may be controverted through expert testimony if a counteraffidavit is not served. The expense of controverting medical billing records through expert testimony at trial or through deposition(s) will likely far exceed the cost of challenging the plaintiff’s medical bills through a proper counteraffidavit.[9] Id.[10]Id.[11] Id.[12]In re Brown, at 3-4.