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Texas Supreme Court Expands Scope of Persons Who Can Provide Section 18.001 Medical Expense Affidavits

By: Eric Hines

In personal injury cases, parties routinely establish past medical expenses by affidavits that comply with Texas Civil Practice and Remedies Code section 18.001.  These affidavits are used to establish the reasonableness and necessity of past medical expenses, a threshold issue to recovery of such expenses at trial by the plaintiff.  These affidavits are not conclusive and can be controverted by a competing affidavit.  Section 18.001 requires the following of these affidavits:

(c)  The affidavit must:

(1)  be taken before an officer with authority to administer oaths;

(2)  be made by:

(A)  the person who provided the service; or

(B)  the person in charge of records showing the service provided and charge  made; and

(3)  include an itemized statement of the service and charge.

The stated purpose of section 18.001 is to “streamline proof of reasonableness and necessity of medical expenses.”  Haygood v. De Escobedo, 356 S.W.3d 390, 397-99 (Tex. 2011).  Regular disputes arise regarding the qualifications needed to for a person to author such an affidavit.

Specifically, defendants contend that the affiant must be a qualified medical provider, or at least the custodian of records for the medical provider.  The Texas Supreme Court in Gunn v. McCoy, __ S.W.3d __, No. 16-0125, 2018 WL 2994534 (Tex., June 15, 2018), weighed in on this subject.  The Gunn court held that the statute does “not limit the proper affiants to medical providers and medical providers’ records custodians.”  

In the Gunn case, the Court allowed the plaintiff to use section 18.001 affidavits prepared and executed by subrogation agents from various health insurance carriers that paid the medical expenses to prove up the claims.  The Court said that, because health care costs today “are complex, and the price of a particular provider’s services may depend on many factors, including geography, experience, location, government payment methods, and the desire to make a profit,” insurance companies (and their subrogation agents) are in a position to testify to the reasonableness and necessity of medical expenses.  The Court further supported its decision by stating that section 18.001 is a “purely procedural” statute and that the initial affidavits are not conclusive, because defendants can file controverting affidavits.

The Court, however, did not address 18.001(f)’s standard for a controverting affidavit.  That section states: 

 (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.

Gunn would seem to create a situation where the defendant’s controverting affiant is held to a higher standard of proof than the party seeking to recover the medical expenses.  Further complicating the matter is the fact that the defendant’s deadline to obtain the counter affidavit is only 30 days from receipt of the plaintiff’s affidavit.  In spite of the Gunn opinion, it seems there is still plenty of room for debate on what proof is needed to satisfy section 18.001.


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