It’s time for the Texas Legislature to revisit and amend § 18.001 of the Texas Civil Practice & Remedies Code. That evidentiary statute concerns admissibility of medical billing records affidavits that would otherwise be considered hearsay. See Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.-Eastland 1995, no writ); Tex. Civ. Prac. & Rem. Code § 18.001. Specifically, the statute provides that an affidavit indicating the amount a person charged for a medical service was reasonable at the time and place the service was provided and that the service was necessary 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. Tex. Civ. Prac. & Rem. Code § 18.001.
A § 18.001 affidavit must be made by the person who provided the service or by a records custodian. In contrast, the statute requires that any counter-affidavit be made by a person qualified by knowledge, skill, experience, training, education, or other expertise to testify about the matters contained in the initial affidavit – i.e., a medical expert. See Tex. Civ. Prac. & Rem. Code § 18.001(c), (f). In other words, § 18.001 permits the reasonableness and necessity of medical charges to be proved by a non-expert custodian, yet requires that a counter-affidavit be made by a medical expert.
This difference in who can make affidavits under § 18.001 places a far greater burden of proof on counter-affidavits than initial affidavits filed by non-expert custodians. See Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.-Dallas 2001, pet. denied). This is particularly true because Texas courts have held that general experience in a specialized field does not qualify a witness as an expert for purposes of submitting counter-affidavits under § 18.001. See Hong v. Bennett, 209 S.W.3d 795, 803 (Tex. App.-Fort Worth 2006, no pet). Instead, the offering party must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Id. (holding chiropractor not qualified to submit counter-affidavits controverting the reasonableness and necessity of services provided by other medical professionals such as a medical doctor, pharmacist and radiologist); see also Turner, 50 S.W.3d at 747 (holding orthopedic surgeon was not qualified to contravene services provided by a hospital, pharmacy, chiropractor, diagnostic center, nurse anesthetists, or doctors who were not orthopedic surgeons).
If a plaintiff submits multiple affidavits from providers in numerous medical fields, a responding defendant must retain expert witnesses in each medical field in order to sufficiently respond to the affidavits. To compound the issue, all this must be done within 30 days. Section 18.001 provides that a party intending to controvert a claim reflected by the affidavit must serve a copy of the counter-affidavit on each other party no later than 30 days after the day the party receives of the affidavit or with leave of court at any time before the commencement of evidence at trial. Tex. Civ. Prac. Rem. Code § 18.001(e).
Section 18.001’s 30-day deadline, coupled with the requirement that a counter-affidavit be made by an expert, can be misused to give an advantage to personal injury plaintiffs. Consider a case in which § 18.001 is used offensively by a plaintiff early in the litigation, before discovery has commenced. A plaintiff’s attorney could gather medical records and affidavits prior to filing a lawsuit against a defendant. Immediately after the defendant answers the lawsuit, the plaintiff could file § 18.001 affidavits and start the 30-day period in which a defendant has to respond with counter-affidavits.
I recently litigated just such a case. In that case, the plaintiff filed § 18.001 affidavits from sixteen medical providers in different medical fields less than a week after first providing copies of the plaintiff’s medical and billing records. It placed my client in the untenable position of having only 30 days in which to retain numerous experts, have those experts review the plaintiff’s medical and billing records in order to determine whether the alleged medical expenses were reasonable and necessary, and complete and serve counter-affidavits under § 18.001. All of these tasks were purportedly to have been completed without the benefit of any discovery or the depositions of any of the plaintiff’s medical providers. This near impossible task is entirely inconsistent with the purpose of § 18.001, which is simply to allow for the admissibility of medical billing affidavits at trial.
In my case, the plaintiff filed a motion for summary judgment on the issue of his medical costs at the conclusion of the 30-day period, attempting to foreclose any discovery on the reasonableness and necessity of the claimed medical costs. The motion for summary judgment was ultimately denied, with the court apparently unimpressed with the plaintiff’s misguided use of § 18.001. Until the Legislature revisits and amends the statute, we can only hope that other courts follow suit and reject attempts to exploit § 18.001.