Texas has enacted new amendments to Texas Civil Practice & Remedies Code § 18.001 that will provide critical clarity to several key issues faced by defendants litigating personal injury matters – including the scope of 18.001 medical expense counteraffidavits, applicable deadlines, and required procedure.

1.         Overview of Current Texas Civil Practice & Remedies Code § 18.001.

Texas Civil Practice & Remedies Code § 18.001 is purely procedural, providing for the use of affidavits to streamline proof of the reasonableness and necessity of medical expenses. The statute provides that an affidavit meeting Section 18.001 specifications is sufficient evidence to support a finding of fact by a judge or jury that the amount charged was reasonable or that the service was necessary. These affidavits, however, are not conclusive; the statute specifically indicates that Section 18.001 affidavits can be controverted by competing affidavits. Thus, though the legislature provided an avenue to “streamline” proof of reasonableness and necessity of medical expenses, such cannot negate the requirement that reasonableness and necessity be in fact proved by legally sufficient evidence.

Further, the Section 18.001(b) exception to the general rule that affidavits of reasonableness and necessity are inadmissible and insufficient proof absent expert testimony applies only if the offering party satisfies the requirements of section 18.001(b) and the opposing party fails to file a controverting affidavit. By filing a proper controverting affidavit, the opposing party can force the offering party to prove reasonableness and necessity by expert testimony at trial. The affidavits filed by a plaintiff are a statutory means to allow submission of a party's uncontroverted medical bills without the normal requisite of expert testimony under Texas Rule of Evidence 702.

2.         The Reach of Section 18.001 Counteraffidavits.

Prior to the passage of H.B. 1693, Texas courts uniformly recognized that uncontroverted affidavits in compliance with Section 18.001 did not substitute for evidence establishing a causal nexus between the defendant's tortious conduct and the plaintiff’s medical expenses. Therefore, even if a plaintiff filed such an affidavit, she still shouldered the burden of establishing the medical expenses were made necessary by the tortious acts or omissions of the defendant. Thus, a jury is not bound to award damages merely because a plaintiff filed an 18.001 compliant affidavit, and instead, the jury is entitled to answer the damages issue as it deems appropriate.

H.B. 1693 further clarified the scope of Section 18.001 as to causation, specifically adding the italicized text below:

(b) Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary. The affidavit is not evidence of and does not support a finding of the causation element of the cause of action that is the basis for the civil action.

The added language makes clear that initial affidavits do not support a finding as to the causation element in a civil action. Moreover, the Texas legislature also clarified the reach of Section 18.001 as to counteraffidavits:

(f) The counteraffidavit 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 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 contained in the initial affidavit. The counteraffidavit may not be used to controvert the causation element of the cause of action that is the basis for the civil action.

Thus, neither the initial affidavit nor the counteraffidavit may address the issue of causation.

3.         Relevant Deadline Changes.

In addition to clarifying the scope of Section 18.001 affidavits, H.B. 1693 alters the deadlines for both service of initial affidavits and service of counteraffidavits. Importantly, “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.” This important change will require plaintiffs to serve Section 18.001 affidavits more than 30 days before trial.

Prior to enactment of H.B. 1693, Section 18.001 required a party intending to controvert a claim to serve a copy of the counteraffidavit no later than 30 days after the date the party received the affidavit or with leave of court at any time before the commencement of evidence at trial. The statute’s amended language provides:

(e) A party intending to controvert a claim reflected by the affidavit must serve a copy of the counteraffidavit on each other party or the party's attorney of record by the earlier of: (1) 120 days after the date the defendant files its answer; (2) the date the party offering the counteraffidavit must designate expert witnesses under a court order; or (3) the date the party offering the counteraffidavit must designate any expert witness as required by the Texas Rules of Civil Procedure.

Upon first read, the statute could be misinterpreted to provide additional time to defendants. However, when viewed in conjunction with plaintiffs’ requirement to serve within 90 days after the defendant files its answer, defendants are again left with the same 30 day allotment for controverting.

4.         Alterations to Procedure.

All too often Section 18.001 affidavits were used offensively by plaintiffs early in litigation. For example, as the statute previously read, “The party offering the affidavit in evidence or the party’s attorney must serve a copy of the affidavit on each other party to the case…” Thus, plaintiffs often attempted to “serve” medical cost affidavits inconspicuously attached to disclosures, piecemeal throughout the discovery process, or attached to production responses. H.B. 1693 seemingly will eliminate such gamesmanship by 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…” Therefore, the lead attorney should receive notice that Section 18.001 affidavits were in fact served. Similarly, the party offering a counteraffidavit must also file notice with the clerk of the court when serving the counteraffidavit.

Overall, the H.B. 1693 changes to the Texas Civil Practice and Remedies Code Section 18.001 provide much needed structure and guidance.  These amendments will become effective on September 1, 2019.  Defendants will need to remain wary of the time limitations imposed upon the provision of controverting affidavits. Further, though the statute requires a controverting affidavit be made by a person who is qualified by knowledge, skill, experience, training, education, or other expertise, H.B. 1693 provides no additional clarity as to 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.