One of the most commonly used tools in personal injury litigation is the affidavit regarding the cost and necessity of medical services provided. Texas Civil Practice and Remedies Code Section 18.001 et seq. governs the use of affidavits to prove up the reasonableness and necessity of medical treatment. These affidavits are ubiquitous because they are a cost-effective way of presenting sufficient evidence that the amount charged was reasonable or the treatment provided necessary, without having to resort to expensive live experts at trial.

The statute allows for a defendant to file a counter-affidavit, controverting the claim(s) presented in the original affidavit. However, the language of the current statute has some restrictive provisions for a defendant wanting to timely file a counter-affidavit without having to seek leave from the court:

(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:

(1)  not later than:

(A)  30 days after the day the party receives a copy of the affidavit; and

(B)  at least 14 days before the day on which evidence is first presented at the trial of the case…

Plaintiffs typically serve a copy of the affidavit at the same time as the medical and billing records. In practice, the statute forces a defendant to rush to review all records provided with the affidavit (which often consist of hundreds or even thousands of pages of medical and billing records), determine whether a counter-affidavit is warranted, seek a qualified expert (who will then need more time to review the records), and allot enough time for the expert to draft a counter-affidavit – all within 30 days of receipt. As it stands, the 30-day requirement is impractical and arguably poses an unfair burden on defendants. The 30-day requirement applies even if litigation is in the very early stages, no trial date has been set, and there is no likelihood of prejudice to Plaintiff if a counter-affidavit is not served within 30 days.

As the Dallas Court of Appeals pointed out in Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.-Dallas 2001, pet. denied), while section 18.001(c)(2)(B) permits charges to be proved by a non-expert custodian, section 18.001(f) requires a counter-affidavit to give reasonable notice of the basis on which the party filing it intends to controvert the claim reflected by the initial affidavit and be made by a person qualified to testify in contravention about matters contained in the initial affidavit. In other words, defendant’s burden is further heightened by the requirement that a counter-affidavit can only be made by a medical expert. Under Texas law, general experience in a specialized field will not qualify a witness as an expert for purposes of submitting a counter-affidavit under section 18.001. See Hong v. Bennett, 209 S.W.3d 795, 803 (Tex. App.-Fort Worth 2006, no pet).

A bill that would have dealt with the arbitrary 30-day requirement to serve counter-affidavits and set up a more reasonable time frame for disclosure prior to trial was introduced in the Texas Legislature, but died in committee. This trap for the unwary remains.