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Dawdle at Your Own Risk: 18.001 Affidavits May Pose Problematic Time Constraints for Defendants

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Section 18.001 of the Texas Civil Practice & Remedies Code is an evidentiary statute that provides Plaintiffs in personal injury lawsuits an alternative to bringing experts to testify at trial as to the reasonableness and necessity of the medical services received. In other words, Section 18.001 affidavits allow the submission of otherwise inadmissible evidence to establish the cost and necessity of the Plaintiff's medical bills. Although not binding on the jury, a properly filed Section 18.001 affidavit is sufficient evidence to support a finding of fact by the jury.

Once Section 18.001 affidavits have been filed with, and accepted by, the court, a party seeking to oppose the affidavits must serve controverting affidavits on the Plaintiff's counsel no later than 30 days after the original affidavits are received and at least 14 days prior to evidence being submitted at trial. Section 18.001 provides one exception to these deadlines: a party may file controverting affidavits at any time with leave of court. Section 18.001 and current case law are silent as to what may induce a court to grant such leave.

The consequences of failing to comply with the 30-day deadline specified in Section 18.001 can be catastrophic to a party planning to bring experts live at trial to contest reasonableness and necessity of services. Some Texas Courts of Appeal have found that Section 18.001 "provides for exclusion of evidence to the contrary, upon proper objection, in the absence of a properly-filed counter-affidavit." See Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App. - Ft. Worth 2006); Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App. - Eastland 1995, no writ). Other Courts of Appeal have found that a proper Section 18.001 affidavit does not bar cross-examination or introduction of medical records as evidence contesting necessity of services even in the absence of a properly-filed counter-affidavit. See Grove v. Overby, 2004 Tex. App. LEXIS 6822 (Tex. App.-Austin 2004, no pet.). How district courts deal with this issue varies significantly as not all the Appellate Courts have dealt with this topic, and the Texas Supreme Court has not yet addressed the issue.

Considering the potential consequences of failing to controvert affidavits within the 30-day window, the recent change from "filed" to "served" with respect to what action kick-starts the deadline is troubling.

Conceivably, a personal injury Plaintiff could file § 18.001 Affidavits with the original petition, which would require the defense to (1) file an answer within 20 days of original petition's filing date and (2) serve controverting affidavits within 30 days of the affidavits being filed. This is a very tight window for Defense attorneys, especially if the client does not immediately notify them of the suit.

TAKE AWAY

Deadlines are very important in the legal profession. Irrespective of a difficult timeframe, a court may strike controverting affidavits along with supporting expert witness testimony if the controverting affidavits are not served timely.

A party who chooses not to serve proper controverting affidavits within 30 days from the date the party is served with the original affidavit runs the risk that any expert testimony offered at trial to contest the reasonableness and necessity of the services reflected in the original affidavit will be barred.

Make sure you and your clients are informed of this risk when deciding whether or not to file controverting affidavits.

PRACTICAL TIPS

1. After receiving an 18.001 affidavit, immediately begin working with your expert to get a controverting affidavit. Do not delay.

2. Request any needed extensions from the opposing party and/or the court before the deadline to file controverting affidavits passes.

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The Bassett Firm

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