In May, the Texas Supreme Court decided a landmark case regarding controverting affidavits pursuant to Texas Civil Practices and Remedies Code §18.001(f). In re Allstate Indemnity Co, 2021 WL 1822946, 1 (Tex., May 7, 2021). The Court’s ruling provided much needed guidance to the lower courts on various issues related to Tex. Civ. Prac. & Rem. Code §18.001 including qualifications of a counter-affiant, the appropriate analysis for “reasonable notice,” and that the statute cannot serve as an exclusionary rule at the time of trial.
Summary: The case involves a bodily injury claim resulting from a motor-vehicle accident in which Plaintiff sued her insurer for failing to pay her Underinsured Motorist benefits, breach of the common-law duty of good faith and fair dealing, violations of the Insurance Code and the DTPA, and negligent misrepresentation. To support her medical expenses, Plaintiff timely served several 18.001 affidavits. Allstate then timely served a counteraffidavit from Christine Dickison (Dickison), a registered nurse experienced in medical billing and coding challenging the reasonableness of the charges.
Dickison’s qualifications were:
- Certified Professional Coder
- Certified as a Professional Medical Auditor by the AAPC.
- 21 years of experience in health care including 12 years of medical billing review, coding and auditor certification and had knowledge of the CPT coding system.
Following a hearing on a motion to strike, the trial court found that Dickison was not qualified to testify in contravention of the reasonableness of the charges, Dickison’s opinions were unreliable, Dickison’s counteraffidavit failed to provide reasonable notice of the bases for her contravention of Plaintiff’s affidavits, and Dickison’s choice of the “median” charge for determining whether a charge is reasonable was conclusory. The trial court rendered an order with the following rulings: (i.) striking the counteraffidavit from the record and precluding it from being offered to contest the medical expenses; (ii.) prohibiting Dickison from testifying in the case; and (iii.) prohibiting Allstate from questioning witnesses, offering evidence or arguing the reasonableness of the medical bills submitted by Plaintiff’s affidavits at trial. Defendants petitioned for a writ of mandamus and after the Corpus Christi Court of Appeals denied their petition, the Texas Supreme Court granted review.
Holdings: The Texas Supreme Court made the following significant holdings:
- A medical billing expert may be a qualified affiant pursuant to 18.001(f) even if they are not in the same field of medicine or if they are not a medical doctor as long as they are qualified by knowledge, skill, experience, training or education to opine on reasonableness of medical expenses.
- Civ. Prac. & Rem. Code §18.001(f)’s “reasonable notice” requirement has the same or similar meaning as Tex. R. Civ. P. 47 pleadings requirement of “fair notice” and a party complies with the “reasonable notice” requirement if the counteraffidavit provides the opposing party with sufficient information to enable that party to prepare a defense or a response.
- Nothing in the text of Tex. Civ. Prac. & Rem. Code §18.001(f) requires that an opinion be expressed in a counteraffidavit must meet the admissibility requirements for expert testimony and therefore it is not appropriate for the Court to undertake an assessment of reliability of the counter-affiant’s expert opinions as they would under Rule 702 or Robinson
- The Texas Supreme Court held that “an opposing party’s failure to serve a compliant counteraffidavit has no impact on it’s ability to challenge reasonableness or necessity [of medical expenses] at trial.”
- The Court also held that mandamus relief may not appropriate in every case under Tex. Civ. Prac. & Rem. Code §18.001(f)
Key Take Aways: The Texas Supreme Court’s opinion provided some guidance to make sure opposing parties are in compliance with the requirements of Tex. Civ. & Rem. Code 18.001(f):
- A medical billing expert who demonstrates extensive experience in medical billing review, coding and/or medical auditing is a qualified counter-affiant.
- While In re Allstate Indemnity Co considered an expert who was a nurse who was a medical billing expert, however the Court also made clear that their holding in Gunn v. McCoy where they allowed insurance subrogation agents who relied on databases of medical expenses qualified to testify on reasonable charges, applied to a counter-affiant’s qualifications as well.
- Any expert should delineate their methodology in using any online database to examine CPT codes for the itemized bills to provide reasonable notice of the charges that they opine are unreasonable.
- A medical billing expert should itemize each charge that is being controverted as unreasonable and explain the basis of those opinions so as to give “reasonable notice” to the opposing party.
- Regardless of whether a controverting affidavit has been filed (or whether any such controverting affidavit has been struck), Defendant may still cross examine witnesses, present expert witness testimony at trial, and argue that the charges in Plaintiff’s affidavit are not reasonable or that the medical treatment was unnecessary. Prepare testifying experts on addressing these issues at trial.