In Haygood v. Escabedo, 356 S.W.3d 390, 399 (Tex. 2011), the Texas Supreme Court held that “only evidence of recoverable medical expenses is admissible at trial,” but no cases have directly addressed the impact of Escabedo on claims of future medical expenses. Plaintiffs are not required to use expert testimony to establish future medical expenses, but they must show there is a “reasonable probability” that they will incur expenses and must present evidence to show “future medical expenses are required and the reasonable cost of that care.” See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 829 (Tex. App.–Houston [1st Dist.] 1999, pet. denied). In determining whether there is a reasonable probability and whether future medical costs are reasonable, a court may consider the plaintiff’s past medical care, the plaintiff’s condition at the time of trial and plaintiff’s progress toward recovery. Id.

In many cases, plaintiffs will submit anticipated costs for future medical expenses. The charges on these anticipated future medical expenses are typically higher than the amounts actually paid by personal injury plaintiffs to the providers because hospitals or providers will often reduce or write-off medical bills, particularly for uninsured or indigent patients. See Kirk L. Pittard, Recovery of Medical Expenses, at 4 (March 2015), available at https://kdplawfirm.com/wp-content/uploads/2015/04/Recovery-of-Medical-Expenses-2015.pdf (last visited on Dec. 30, 2016). Therefore, the amounts ultimately incurred by a plaintiff for future medical expenses are significantly less than the anticipated costs. In cases where the plaintiff is insured, a plaintiff may rely on past medical expenses to show the reasonable cost of future medical expenses. On the other hand, in cases where the plaintiff is uninsured, the court may permit the submission of unadjusted past medical bills as evidence of the reasonable costs for future medical expenses. Henderson v. Spann, 367 S.W.3d 301, 306 (Tex. App.–Amarillo 2012, pet. denied) (Justice Pirtle concurring) (“evidence of unadjusted past medical expenses may have probative value as to the extent of reasonable and necessary future medical expenses unless there is evidence that the future medical expenses will be adjusted, discounted or written-off on the same basis as current medical expenses”).

What strategies can insurers and defendants utilize to dispute the anticipated costs for future medical expenses which often do not reflect adjustments and write-offs customarily given to patients? Plaintiffs will usually get an estimate of future medical expenses from a consulting provider who will write letters or include the estimated cost for a plaintiff’s future surgical procedures in their consultation records. In these situations, it may be beneficial for defendants to depose the custodian of records prior to trial to obtain testimony regarding the provider’s billing practices so that the future medical expenses may be disputed.

An underemployed strategy is to file controverting affidavits to dispute the reasonableness of past medical expenses so that the plaintiff is forced to call the custodian of records to testify at trial. Seth Burt, No Medical Insurance? Hey That’s Good for Plaintiffs: A Defendant’s Analysis of Haygood v. Escabedo, 66 Baylor L. Rev. 425, 441 (2014). Having the custodian of records at trial allows defendants to cross-examine the custodian of records regarding the provider’s billing practices and ultimately allows defendants to show that the provider is willing to receive significantly less than the amount shown on the billing records. Id. Not only does this strategy assist defendants in disputing the past medical expenses but also allows defendants to dispute the anticipated costs of future medical expenses.

A strong argument could be made by defendants and insurers under Escabedo and Spann that plaintiffs should not be able to offer evidence of future medical expenses that do not reflect adjustments and write-offs normally given by a specific provider to his patients because these costs do not reflect the “reasonable cost of that care.” Nothing in the current case law prohibits insurers from submitting evidence disputing the reasonableness cost of the anticipated future medical expenses. In fact, Justice Pirtle’s concurring opinion in Spann strongly suggests that evidence which shows future medical expenses may be adjusted, discounted or written-off would be admissible to dispute the reasonableness of the cost of the future medical expenses. Spann, 367 S.W.3d at 306.