Last blog we discussed issues to look for in evaluating challenges to 18.001 affidavits on grounds outside of controverting affidavits. Additionally, you should consider the limitations on the scope of Section 18.001 affidavits.
Challenge causation! On this subject, the courts are in agreement: causation has nothing to do with the 18.001 affidavits. "Compliance with the statute does not establish that the amount of the damages shown to be reasonable and necessary was caused by the defendant's negligence and therefore does not establish the plaintiff's entitlement to those damages as a matter of law."1
When causation is challenged and the injuries lay outside the common knowledge of laypersons, expert testimony is required. "Causation as to certain types of pain, bone fractures, and similar basic conditions following an automobile collision can be within the common experience of lay jurors."2 In contrast, injuries relating to complicated medical issues, such as cancer, traumatic brain injury, skull fractures, and infections, or that involved a more complicated timeline, such as delay in treatment or a significant prior medical history, likely require expert testimony.
Remember - Controverted or not, the jury is not bound by the 18.001 Affidavit. While an uncontroverted affidavit 18.001 may provide a streamlined procedure for a party to submit evidence of the reasonableness and necessity of services and expenses without paying an expert to appear at trial, do not lose sight of the fact that the jury is not bound by the uncontroverted affidavits: "[N]othing in section 18.001 makes the statements of non-expert affiants on the issues of reasonableness and necessity any more binding on factfinders than the live testimony of a medical expert.3
Check back with us next time as we continue discussing the 7 things you need to know about 18.001 Affidavits. Next up we address what happens after proper affidavits and counteraffidavits have both been served.
1. Sloan v. Molandes, 32 S.W.3d 745, 749 (Tex. App.-Beaumont 2000)(emphasis added).
2. Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex. 2007).
3. Reyna v. Aldaco, No. 07-04-0033-CV, 2005 Tex. App. LEXIS 10118, at *6 (Tex. App. - Amarillo)(internal citations omitted).