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“Qualified” Under 18.001 Is Not Limited to Medical Practitioners

On Behalf of | Sep 26, 2019 | Firm News

Recently, the 12th Court of Appeals in Tyler determined that a trial court abused its discretion in granting a motion to strike a counter-affidavit prepared by a medical billing and coding expert who relied on databases to challenge the reasonableness of the medical expenses reflected in the initial affidavit. 

In this case, Josue Saucedo alleged that his vehicle was struck by Larry Brown, who was driving a vehicle owned by JBS Carriers, Inc. (“JBS”). During the course of litigation, Saucedo served several affidavits regarding the reasonableness and necessity of medical treatment in accordance with Section 18.001 of the Texas Civil Practice and Remedies Code. In response to Saucedo’s affidavits, Brown and JBS filed the controverting affidavit of Jana Schieber, R.N.

Saucedo ultimately filed a motion to strike the affidavit on multiple grounds. First, Saucedo argued that Schieber’s opinions lacked a reliable foundation or factual basis. Second, Saucedo claimed that Schieber was not qualified to controvert the medical expenses because she was not a practicing nurse and because she relied databases rather than her own training, expertise, or experience. Third, Saucedo alluded to the fact that Schieber had been struck in other cases. Finally, Saucedo claimed that Schieber offered no facts, treatises, or medical studies to show reliability or acceptance by the medical community of the databases in which she relied. Although, Brown and JBS subsequently provided a declaration from Schieber that included attachments from the databases in which she relied, the trial court granted the motion to strike, finding that Schieber was not qualified to provide expert testimony and that the opinions in her controverting affidavit were unreliable.

On appeal, the 12th Court of Appeals acknowledged that (1) Section 18.001(f) requires that a counteraffidavit be made by a person qualified to testify in contravention about matters contained in the initial affidavit and (2) the statute places a greater burden of proof on the controverting party in order to discourage their misuse in a manner that frustrates the intended savings. However, relying on a recent Texas Supreme Court decision, the Court held that Saucedo’s arguments – that Schieber was unqualified and that her opinions were unreliable because was not a practicing nurse and relied upon databased – lacked merit.

Further, the 12th Court of Appeals determined that Schieber provided reasonable notice of the basis on which the Defendants intended to controvert the claims in Saucedo’s affidavits, because she included an itemized review of all charges, which also identified the amount “allowed” per service. In each instance in which the amount charged exceeded the amount allowed, Schieber controverted the amount charged.

Because Schieber was qualified and she provided reasonable notice, the Counter-Affidavit satisfied the requirements under Section 18.001(f), and the 12th Court of Appeals determined that the trial court had abused its discretion in striking Schieber’s counter-affidavit.

Gunn v. McCoy


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