The 2019 Texas legislative session made significant changes to an important provision of the Texas Civil Practice & Remedies Code that aids parties in proving up charges for services without having to bring a live witness to trial. Section 18.001 was essentially rewritten a) to clarify that proving up charges for services without a live witness is its sole purpose, and b) to eliminate some inequities in the deadlines previously imposed.

 

Previous Application

Section 18.001 affidavits have been primarily used to prove up a plaintiff’s medical expenses in a medical malpractice case. However, it is a useful tool in many types of cases because it applies to “the amount a person charged for a service.” The statute allows an affidavit that sets forth the charges and says they are reasonable and necessary to be sufficient evidence to support a finding of fact that the amount charged was reasonable for the service and the service was necessary. A timely-filed counter affidavit can challenge the affidavit.

The prior version of the statute did not provide that the affidavit was conclusive (i.e., a jury could award less), nor was it any evidence of causation. Unfortunately, some trial courts have misunderstood that. Numerous cases have been decided by various courts of appeals with contrary results regarding causation, timing,  the ability of a defendant whose counter-affidavit was struck to challenge the expenses, and other issues.

The new version of Section 18.001 explicitly states that an affidavit of charges for a service is not evidence of the causation element of a cause of action. It sets deadlines that are somewhat earlier for the plaintiff, and it eliminates a maneuver previously used by plaintiffs to make a defendant’s counter-affidavit more difficult to file. Previously, the party offering the affidavit could file it as late as 30 days before the date on which evidence was first presented at trial, which could certainly cause a problem for the party trying to file a counter=affidavit (at least 14 days before the date on which such evidence is first presented at trial). There was also a common tactical device employed by plaintiffs that had prompted several appellate court decisions.  For example, a plaintiff would file a Section 18.001 affidavit immediately after the defendant filed an answer. A person sued for malpractice can hardly file a counter-affidavit as to the reasonableness and necessity of medical expenses within 30 days of getting the basic information on the suit — the defendant would not have even deposed the plaintiff to determine the injury itself, much less the reasonableness and necessity of medical expenses. At best, it could rush to find an expert that would prepare a counter-affidavit, but that would be subject to being stricken because of lack of foundation, qualification of the expert, etc.

 

New Deadlines

Section 18.001 has a new set of deadlines that appears complicated because it details different situations applicable to scheduling orders, newly-incurred charges, expert witness designation deadlines under the rules, etc. However, the basic change is that the party offering an affidavit regarding amounts charged for services must file the affidavit by the earlier of

  • 90 days after the date defendant filed an answer,

  • the date the offering party must designate an expert witness under a court scheduling order, or

  • the date it must designate an expert witness as required by the Texas Rules of Civil Procedure.

This  moves the first affidavit date for a plaintiff earlier — with  the 90-day deadline (in most cases, the other two possible deadlines would be longer than 90 days), but the statute gives opportunities to amend and supplement as further costs are incurred. The offering party must file notice with the clerk of the court that the affidavit was served, but it does not have to file the affidavit itself with the clerk. 

 

The party offering a counter affidavit must do so by the earlier of

  • 120 days after the defendant files its answer,

  • the deadline to designate expert witnesses under a court order, or

  • the date the party must designate an expert witness as required by the Texas Rules of Civil Procedure.

 

These changes should encourage parties to enter into agreed scheduling orders that will make it easy to calculate the deadlines for filing affidavits and counter-affidavits. It should also eliminate some of the game playing and limit the ways in which the failure to file a counter-affidavit had impacted the merits of questions other than the reasonableness and necessity of charges that had been percolating through the appellate courts.


 

By Published On: May 1, 2020Categories: AppellateTags:

About the Author: Julia Pendery

Julia Pendery is an attorney in the Cowles and Thompson Appellate Law section.