To close out our 9-part series on 18.001 affidavits, this week, we'll discuss last random issues and thoughts.
#7 - Fruits and nuts - random thoughts on 18.001
1. Is 18.001 only for medical records? We tend to think of "services" as medical in nature, but Section 18.001 is not limited to medical expenses. For instance, an 18.001 affidavit may be used for attorneys to show their fees are reasonable and necessary. Affidavits for attorney fees must meet the usual requirements under § 18.001 with one exception; they do not have to include an itemized statement. 18.001 affidavits have also been used to prove up construction costs to repair a restaurant that was severely damaged by a flood.
However, certain services have been specifically excluded from using 18.001 affidavits. For example, Section 18.001 does not "apply to proof in a delinquent tax case."
2. Does 18.001 allow for live testimony by a custodian of records?
In Castillo v. Am. Garment Finishers Corp, the court concluded that normally expert testimony must be used to establish the reasonableness and necessity of medical expense, and that Section 18.001 is an evidentiary rule that "provides a limited exception." Thus, although records custodians may make the 18.001 affidavit, they may not offer live testimony to establish the reasonableness and necessity of charges.
3. Does 18.001 waive consulting expert privilege?
The short answer is yes. Use caution when using a consulting expert as an affiant for 18.001 purposes. If a consulting expert prepares a controverting affidavit, the expert's otherwise privileged mental impressions and opinions may become discoverable, and the consulting expert may be subject to deposition.
4. Overreaching - be thoughtful about the scope of your controverting affidavit
If your expert's controverting affidavit addresses subjects for which he or she is unqualified, a court may strike the entire affidavit rather than allow you to remove or redact the improper portions. For example, in Limon, an orthopedic surgeon made a conclusory statement that he was qualified to discuss services provided by a broad spectrum of health care providers. Ultimately, the court struck his entire affidavit and specifically declined to "parse through the affidavit and strike only those portions pertaining to non-orthopedic surgeon services."
Perhaps the biggest challenge in the Section 18.001 arena is dealing with the lack of clear and consistent guidance from higher courts on basic concepts such as (1) what exactly it takes to satisfy the requirements under Section 18.001 and (2) what happens once the requirements are satisfied.
With that in mind, the best practice when dealing with Section 18.001 affidavits is to play it safe. Stay on top of your deadlines and carefully evaluate the qualifications and opinions of your controverting experts before you submit a counter affidavit. Be prepared to defend your counter affidavits against Motions to Strike, and be ready with alternate plans of attack.
Do not let a mistake or a negative ruling on the issue of 18.001 affidavits completely derail your case. Take advantage of the lack of guidance in this area and get creative where you can.
Jamshed v. McLane Express Inc., 449 S.W.3d 871, 884 (Tex. App.-El Paso 2014); See also Ellen v. Carr, NO. A14-92-00292-CV, 1992 Tex. App. LEXIS 2987, at *3 (App.-Houston [14th Dist.] 1992) (unpublished).
Ins. Alliance v. Lake Texoma Highport, LLC, 452 S.W.3d 57, 70 (Tex. App.-Dallas 2014).
Galindo v. Cnty. of Dall., No. 05-00-00650-CV, 2001 Tex. App. LEXIS 1390, at *3 (App.-Dallas 2001).
In re Mendez, 234 S.W.3d 105, 108-11 (Tex. App.-El Paso 2007).
City of Laredo v. Limon, No. 04-12-00616-CV, 2013 Tex. App. LEXIS 13644, at *17 (App.-San Antonio 2013).