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Guidance on Counter Affidavits Under Section 18.001

On Behalf of | Jul 14, 2021 | Firm News

Recently, the Supreme Court of Texas issued an opinion that provides much needed clarification on the requirements imposed on controverting affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code. Specifically, in the matter of In Re Allstate Indemnity Company, a mandamus proceeding, the Court addressed whether the trial court abused its discretion by striking a timely served controverting affidavit and precluding the offering party from contesting the reasonableness of the medical expenses at trial.

The underlying suit is a dispute over Underinsured Motorist (“UIM”) benefits. To prove up the reasonableness and necessity of her claimed medical expenses, Norma Alaniz served affidavits from multiple medical providers under Section 18.001 of the Texas Civil Practice and Remedies Code. In response, Allstate Indemnity Company (“Allstate”) served a counter affidavit from Christine Dickison, a registered nurse experienced in medical billing and coding, which challenged only the reasonableness of the charges from three of Alaniz’s medical providers.

Alaniz filed a Motion to Strike the controverting affidavit arguing that it was “wholly and fatally defective” because (1) it was not made by someone qualified to testify in contravention of her affidavit in part or in whole, (2) the opinions were unreliable, and (3) the counter affidavit did not give reasonable notice. The trial court agreed and entered an order striking the counter affidavit, prohibiting Dickison from testifying, and prohibiting Allstate from questioning witnesses, offering evidence, or arguing to the jury about the reasonableness of the medical bills. Allstate sought mandamus review of the trial court’s order.

The Court heard oral arguments on February 24, 2021, and on May 7, 2021, the Court issued an opinion offering the following key conclusions:

  1. A qualified medical coding and auditing expert may testify about the reasonableness of the medical expenses described in the initial affidavits.
    The Court noted that Dickison’s counter affidavit recited her extensive education and training in nursing as well as her twelve years of experience reviewing medical bills. The Court also clarified that it is not required that someone be in the same field of medicine in order to challenge the reasonableness of medical charges.

  3. A medical coding and auditing expert may rely on databases of medical expenses.
    The Court clarified that the discussion of the complexities of the modern health care system and reliance on national and regional databases for price comparison purposes in Gunn was not confined to Section 18.001(c). The Court concluded that Dickison’s counter affidavit showed that she was “a highly-qualified medical coding and auditing expert” with experience using a nationwide database that compiles the amounts charged for the same medical services or devices identified in the initial affidavits; therefore, Dickison’s counter affidavit establishes her qualification to testify that certain medical expenses were not reasonable.

  5. The “reasonable notice” requirement is similar in meaning to the “fair notice” pleading requirement. This means that a controverting affidavit provides reasonable notice if the opposing party can ascertain from the controverting affidavit each charge that is being controverted as unreasonable and the bases on which those charges are being challenged.
    The Court concluded that Dickison’s counter affidavit “unquestionably satisfies the reasonable-notice requirement” because it itemizes each charge that is being controverted and Dickison explains in detail the bases on which she and Allstate challenge those charges.

  7. Section 18.001(f) does not require an opinion expressed in a controverting affidavit to meet the admissibility requirements for expert testimony.

  9. Nothing in Section 18.001 provides for the exclusion of evidence based on the absence of a proper controverting affidavit.
    An order from the trial court that not only strikes a controverting affidavit but also (1) precludes a defendant from presenting its own evidence on the reasonableness of the claimant’s medical expenses and (2) prohibits a defendant from challenging the claimants’ evidence through cross-examination or jury argument, vitiates or severely compromises the defense, and Mandamus relief is an appropriate remedy.


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