Early last year, I wrote about the split among the Texas courts of appeals on whether mandamus relief is available to challenge a trial court’s ruling striking a Section 18.001 counteraffidavit.  Civil Practice and Remedies Code Section 18.001 counteraffidavits are used by defendants to contest the reasonableness and necessity of a claimant’s affidavit proof of medical expenses in personal injury cases.  The Texas Supreme Court has now resolved the split of authority and held that mandamus relief is available because an appeal is not an adequate remedy since the defendant’s ability to present a viable claim or defense at trial is severely compromised.

In In re Allstate Indemnity Company, No. 20-0071, the trial court’s challenged order excluded the defendant’s damages expert from testifying on any issue and it prohibited the defendant from offering evidence, questioning witnesses, or arguing to the jury about the reasonableness of the plaintiff’s medical expenses.  The supreme court wrote that the order was “far from routine.”

The trial court had expressed a number of reasons for striking the defendant’s counteraffidavit.  One by one, the supreme court’s opinion addresses each reason provided by the trial court and holds that the trial court erred.  Many of the grounds addressed are commonly-used grounds for striking counteraffidavits.

Lack of expertise.  The supreme court rejected the trial court’s ruling that the affiant lacked the expertise to controvert the reasonableness of expenses.  The record showed that the affiant had extensive education and training in nursing and was a licensed registered nurse.  She had 21 years’ experience in healthcare, including 12 years reviewing medical bills.  The supreme court expressly rejected the contention that the nurse had to be in the same field of medicine as was reflected by the medical charge in order to attest to reasonableness of the charge.

Lack of “reasonable notice.”  The supreme court rejected the conclusion that the counteraffidavit failed to give reasonable notice of the charges that were being contested.  The court likened Section 18.001’s “reasonable notice” requirement to the “fair notice” requirement for pleadings.  In this case, the court held that the reasonable notice standard was met where the affiant itemized each charge being controverted and compared it to the median charges for the same service in the same time-frame and zip code.

Unreliability.  The supreme court held that the trial court abused its discretion by striking the affidavit due to the trial court’s conclusion that the affiant’s opinions were unreliable.  The supreme court held that Section 18.001 does not make reliability one of the threshold standards applicable to Section 18.001 counteraffidavits.

Limits on defendant’s evidence at trial.  The supreme court also held that the trial court abused its discretion by prohibiting the affiant from testifying at trial and by prohibiting the defendant from questioning the plaintiff’s witnesses, offering evidence, or arguing to the jury about the reasonableness of the plaintiff’s medical bills.  The court observed that Section 18.001 is purely procedural and designed to streamline a plaintiff’s proof.  The failure of a defendant to file a counteraffidavit under Section 18.001 has no impact on the defendant’s ability to challenge reasonableness and necessity of a plaintiff’s medical expenses at trial.  This last holding is consistent with the dissent in the earlier Dallas Court of Appeals case (In re Parks) that I wrote about last year.

By Published On: May 26, 2021Categories: AppellateTags: ,

About the Author: Mike Northrup

Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group.