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The New 18.001 Affidavit Rules and What They Mean for Your Lawsuit

The Texas legislature recently passed (and governor Abbot signed) House Bill number 1693, which amended chapter 18.001 of the Civil Practice and Remedies Code ("CPRC")-the portion of the Civil Practice and Remedies Code that governs affidavits and counter-affidavits regarding the reasonableness and necessity of medical services. 

These amendments are important because the changes will likely provide much needed "breathing room" for certain litigation deadlines and allow Defendants to avoid unnecessary expenses that regularly resulted under the prior version of CPRC 18.001.

The Old Rule

Under the old language of 18.001, a Plaintiff could file an affidavit from a medical provider stating that the amount charged for the services was reasonable and that the medical services provided were necessary. So long as a Plaintiff filed such an affidavit for his medical providers at least 30 days prior to trial (or, at least, 30 days prior to the date evidence was first heard at trial), then that affidavit alone was considered sufficient evidence to support a finding of fact by the judge or jury that the amounts charged were indeed reasonable and that the services were indeed necessary.

The only way a Defendant could dispute such an affidavit was to file a counter-affidavit (otherwise known as a controverting affidavit) within 30 days of being served with the Plaintiff's affidavit. If a Defendant missed this 30 day window, then the Defendant was stuck with the Plaintiff's often inflated medical bills. In other words, unless the Defendant controverted, he or she was stuck with the treatment and charges and could not contest reasonableness and necessity of the treatment/charges at trial.

Practically speaking, under the old CPRC 18.001, Plaintiffs were allowed to treat with attorney referred medical providers who would provide affidavits stating that grossly inflated medical bills were reasonable and that all of the medical services they provided were necessary. When the Defendant received these affidavits-even if the Defendant received the affidavit a day after being served in the lawsuit-the Defendant only had 30 days to review the bills, contact an expert, provide the bills to an expert, and obtain an opinion from the expert with a controverting affidavit stating that the medical services rendered were either unreasonably expensive, not necessary, or both. This regularly resulted in a mad dash to find and retain a controverting expert, many of whom charged additional fees due to the expedited nature of controverting.

The New 18.001 Rules under HB 1693

The new CPRC 18.001 language under HB 1693 basically does two things:

1. The language confirms that an affidavit regarding the reasonableness and necessity of medical bills and services does not support a fact finding that an incident caused a Plaintiff's injuries; and

2. The language alters the 18.001 deadlines to require the Plaintiff to file any affidavits earlier in litigation while allowing Defendants more time to controvert such affidavits in most cases.

1. Causation under HB 1693

Although most Courts (and most honest attorneys) understood and agreed that the old 18.001 rules had nothing to do with the causation element of a negligence lawsuit, some Courts appeared to have a differing opinions, and some attorneys attempted to argue that the affidavits could be used to prove that an accident actually caused a Plaintiff's injuries (preventing a non-controverting Defendant from arguing that the accident didn't cause the injuries).

The new 18.001 language under HB 1693 specifically states that the affidavits and counter-affidavits under 18.001 are only relevant to the reasonableness of medical bills and the necessity of the medical services performed. In other words, a Plaintiff cannot file an 18.001 affidavit stating that the Plaintiff's injuries were caused by an accident. Similarly, a Defendant cannot file a controverting affidavit under 18.001 stating that the accident did not cause a Plaintiff's injuries.

2. New 18.001 Deadlines under HB 1693

Although the actual 18.001 language under HB 1693 is somewhat confusing, the practical implications are fairly straightforward. With a few minor caveats, the practical implications regarding deadlines are as follows:

A. A Plaintiff must serve its 18.001 affidavit on a Defendant within 90 days of the Defendant filing its Answer. This is important because this is a much quicker deadline than the previous 18.001 language, which allowed the Plaintiff to wait up until 30 days prior to evidence being submitted at trial.

B. If a Court Orders or a portion of the Texas Rules of Civil Procedure set the Plaintiff's expert designation deadline earlier than 90 days after the Defendant files its Original Answer, then the Plaintiff must serve it's 18.001 affidavit by this earlier expert designation deadline. This is somewhat confusing when read; however, this is also fairly straightforward. Sometimes a Court may issue a Scheduling Order specifically establishing various deadlines in a case. If the Court's Order, for example, sets the Plaintiff's expert designation on a date that is 60 days after the Defendant's Answer, then the Plaintiff must file its 18.001 affidavits by its expert designation deadline, instead of the standard 90 days on the filing of the Defendant's Answer. Similarly, the Texas Rules of Civil Procedure in certain instances may establish an earlier expert designation deadline. In those instances, the Plaintiff must also serve its 18.001 affidavit by the earlier expert designation deadline.

C. A Defendant must serve its 18.001 counter-affidavit on Plaintiff within 120 days after the Defendant files its Answer.

D. Similarly to the Plaintiff's rules stated above, if a Court Order for the Texas Rules of Civil Procedure set the Defendant's expert designation at a time earlier than 120 days after the Defendant's initial Answer, then the Defendant must likewise serve its counter-affidavit by this earlier deadline.

E. If a Plaintiff receives medical treatment from a medical provider for the first time after a Defendant files its Answer, then the Plaintiff must serve its 18.001 affidavit for that provider on the Defendant by the Plaintiff's expert designation deadline set out by Court Order or the Texas Rules of Civil Procedure. If a Defendant receives an affidavit from such a medical provider, then the Defendant has either 30 days or until its expert designation deadline, whichever is later. Again, this could result in significantly more time to controvert.

F. If a Plaintiff continues to receive medical care from a medical provider after it has served an 18.001 affidavit, then the Plaintiff can submit supplemental 18.001 affidavits, on or before the 60th day prior to the commencement of trial, and a Defendant may file a counter to this supplemental affidavit on or before the 30th day before the commencement of trial. This timeline is like the old 30-day window.

Takeaways and Practical Considerations

1. In most situations, the new 18.001 language will result in much later deadlines for Defendants, which will allow Defendants to avoid hasty-often expensive-decisions regarding controverting.

2. Plaintiffs now have their own, more strict, deadlines to consider when serving 18.001 affidavits. Plaintiffs can no longer simply wait around to submit 18.001 affidavits 30 days prior to evidence being submitted at trial. If a Plaintiff was treating with a provider prior to a Defendant filing an Answer, the Plaintiff will be required to serve its affidavit within 90 days of Defendants Answer or Plaintiff will be required to prove that the treatment and expenses were reasonable and necessary at trial.

3. Because the Plaintiffs cannot simply wait/delay for months on end before serving 18.001 affidavits, Defendants (and their insurers) should begin seeing more complete sets of medical records and bills at earlier points in litigation.

4. Since the new 18.001 language places stricter deadlines on Plaintiffs, which will result in more room for error, we anticipate seeing more Agreed Scheduling Orders from Plaintiffs and Defendants that establish agreed 18.001 deadlines, which will make life easier for all litigants.

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