On May 7, 2021, the Texas Supreme Court issued an opinion in In re Allstate Indemnity Co., ruling that a party’s failure to comply with the requirements of Section 18.001 of the Texas Civil Practice and Remedies Code for counteraffidavits does NOT preclude the party from offering evidence or argument regarding the reasonableness and necessity of past medical expenses at trial.
Following a motor vehicle collision, Plaintiff Alaniz filed suit seeking underinsured motorist benefits under her policy with Allstate. She alleged damages that included past medical expenses, and served affidavits from her medical providers in accordance with section 18.001 to support the reasonableness and necessity of the charges. In response, Allstate served a counter affidavit from Christine Dickison, a registered nurse with expertise in medical billing and coding. Dickison’s counteraffidavit did not address the necessity of the care provided, but challenged the reasonableness of the charges. The counteraffidavit described her education and professional background as a Registered Nurse, certified Professional Coder and certified Professional Medical Auditor, with 21 years of experience in the healthcare industry and 12 years of experience in medical billing review. The counteraffidavit went on to describe in detail the methodology and resources she used to form her opinion that the charges from several of Alaniz’s medical providers were excessive and unreasonable for the services provided.
Alaniz filed an Objection and Motion to Strike the counteraffidavit, arguing that: (1) Dickison was not qualified to testify about all or part of the matters covered by the initial affidavit; (2) her opinions were not reliable; and (3) the counteraffidavit did not give reasonable notice of the basis for her conclusions. Alaniz’s motion not only asked the trial court to strike the affidavit, it asked the court to preclude Dickison from offering any testimony or opinions about the reasonableness or necessity of the medical bills supported by affidavits.
Following an evidentiary hearing, the trial court granted the motion, finding that Dickison was not qualified as an expert to testify about the reasonableness of the charges, that her opinions and the data they were based on was unreliable, that the counteraffidavit failed to give reasonable notice of the basis for her contravention of Alaniz’s affidavits, and that the counter affidavit did not establish by relevant, reliable evidence how charges that exceed the median charge are unreasonable. The court not only excluded the counteraffidavit and ordered that Dickison could not testify at trial, it ordered that Allstate was “prohibited from questioning witnesses, offering evidence, or arguing to the jury the ‘reasonableness of the medical bills’ that Alaniz had submitted by affidavit to date.”
The Corpus Christi-Edinburg Court of Appeals denied Allstate’s petition for mandamus, and Allstate sought review by the Texas Supreme Court.
The Texas Supreme Court disagreed with every aspect of the trial court’s ruling, holding that Dickison’s counteraffidavit complies with the requirements of 18.001(f), and that the trial court abused its discretion both by holding otherwise and by penalizing Allstate for its ‘noncompliance’ in a manner that is not authorized by the statute.
The Court rejected the argument that the reasonableness and necessity of medical expenses may only be challenged by someone in the same field of medicine, citing its previous opinions in Gunn v. McCoy and Broders v. Heise, which expressly recognized that even non-doctors could provide expert testimony on a specific medical issue, provided that the offering party establishes the expert’s knowledge, skill, experience, training, or education regarding the specific issue. Id. at *5-6. The Court held that Dickison’s counteraffidavit established her qualifications to testify about the reasonableness of the medical billing in this case. Id. at *6.
The Court criticized the trial court’s determination that the counteraffidavit failed to meet the reasonable notice requirement because it does not show that she is knowledgeable about the services in dispute, and because it was conclusory with respect to using the median charge as the standard to determine reasonableness. The Court explained that while these issues may be grounds to challenge the admissibility or weight of Dickison’s opinions at trial, they are not a proper basis to strike a counter affidavit under section 18.001, which only requires the counteraffidavit to give “reasonable notice” of the basis for contravention. The Court defined that term consistently with the “fair notice” standard for pleadings under TRCP 47, which provide that a pleading provides “fair notice of the claim involved” if the opposing party can ascertain from the pleading the nature and basic issues in controversy and what testimony will be relevant, holding that a counter affidavit provides “reasonable notice” if it provides the opposing party sufficient information to enable that party to prepare a defense or response. Id. The Court found that Dickison’s detailed counteraffidavit describing the basis for her opinions “unquestionably” satisfied the fair notice requirement. Id. at *7.
Similarly, the Court found that the trial court abused its discretion by striking Dickison’s counteraffidavit based on a finding that her opinions were unreliable. The Court correctly pointed out that nothing in the text of 18.001(f) requires that an opinion expressed in a counteraffidavit must meet the admissibility requirements for expert testimony, rejecting Alaniz’s argument that the words “to testify” in the second sentence of 18.001(f) require the analysis. The Court noted that the plain language of the statute makes it clear that the focus is on whether the counteraffidavit establishes that the witness is qualified to testify as an expert, not on the substance or reliability of the testimony.
Finally – and most significantly – the Court explained that mandamus would have been granted in this case even if the trial court’s decision to strike the counteraffidavit had been correct because the trial court penalized Allstate in a manner not authorized by the statute. The Court held that it was an abuse of discretion to prohibit Dickison from testifying at trial, and to further prohibit Allstate from “questioning witnesses, offering evidence, or arguing to the jury the ‘reasonableness of the medical bills’ supported by affidavits,” rejecting Alaniz’s argument that the language of 18.001(e) establishing the timing and procedure for serving a counteraffidavit by “a party intending to controvert a claim reflected by the affidavit,” supports the trial court’s order.
The Court emphasized that 18.001 is a “purely procedural statute” designed to “streamline proof of the reasonableness and necessity of medical expenses, noting that while an uncontroverted affidavit under this section may be sufficient evidence to support a finding that the expenses were reasonable and necessary, nothing in the statute even suggests that an uncontroverted affidavit may be conclusive on those issues. Id. at *8. The Court found nothing in the text of the statute to support the assertion that the absence of a proper counteraffidavit constitutes a basis to constrain the defendant’s ability to challenge – through evidence or argument – the plaintiff’s assertion that the medical expenses are reasonable and necessary. The Court criticized the apparent source of this idea, an observation by the Eastland Court of Appeals in Beauchamp v. Hambrick, 901 S.W.2d 747 (Tex. App.—Eastland 1995, no writ).
The Court stated: “By creating an exclusionary sanction for the failure to satisfy section 18.001(f) that finds no basis in the statutory text, Beauchamp and the courts following it have turned this “purely procedural” statute into a death penalty on the issue of past medical expenses,” holding that the trial court’s order in this case did exactly that. The Court concluded that the trial court abused its discretion by excluding the testimony and evidence on the reasonableness and necessity of the claimed medical expenses without a valid legal basis, and further by prohibiting Allstate from questioning witnesses or making arguments to the jury on those issues.
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