Judge Xavier Rodriguez, Western District of Texas

A San Antonio federal district court has held that a defense expert in medical billing practices a may offer testimony controverting the plaintiff’s evidence of reasonable and necessary charges for medical procedures.

Former Texas Supreme Court justice and current U.S. District Judge Xavier Rodriguez ruled the defense expert, a registered nurse and owner of a medical bill auditing business, had the requisite “knowledge, skill, experience, training, or education” to offer evidence controverting the plaintiff’s physician’s opinion regarding the reasonable and necessary charges for spinal surgery. In addition to her experience as a practitioner, the defense expert had 14 years of experience in reviewing medical bills and had training and education in medical coding and medical bill auditing by the American Association of Professional Coders. Judge Rodriguez observed that Texas courts have “found an expert qualified to provide opinion testimony on the reasonable of medical charges where the expert is not a medical provider, or where the expert relies on data from a database to support their opinion” [citations omitted]. Judge Rodriguez went on to reject plaintiff’s motion to strike the defense expert’s testimony, finding that the testimony was properly founded and reliable and would assist the trier of fact in determining the question of reasonableness of the charges.

Although Judge Rodriguez’s ruling turns on the application of the Daubert standard under the federal rules, the determination of the admissibility of the testimony of a defense billing expert should be persuasive to Texas courts presented with controverting affidavits by non-physician experts on medical billing and auditing. As you recall, during the last session the Texas Association of Defense Counsel, TCJL, and other groups supported legislation by Rep. John Smithee (R-Amarillo) and Sen. Bryan Hughes (R-Mineola) to bring much-needed reform to the process of submitting medical expenses into evidence by affidavit. Despite recent rulings by the Texas Supreme Court and the Tyler Court of Appeals, some Texas trial courts have taken the position that a non-physician billing expert is not qualified to controvert the reasonableness and necessity of the charges submitted by the plaintiff and have struck defense counter-affidavits. The effect of striking defense expert testimony is to leave the finder of fact with no evidence controverting the plaintiff’s medical expense damages, thus defeating the purpose of the paid or incurred rule.

Judge Rodriguez’s reasoning under the federal rules applies equally to Texas law. Texas law clearly requires properly prepared and qualified defense billing experts to offer controverting opinion testimony of reasonableness. Unfortunately, some trial courts will undoubtedly continue to make erroneous rulings to strike such testimony, either through inexperience or by simply ignoring the law. Defendants who experience this treatment, if they are able, should push the issue to the appellate level until they get the message.

Judge Rodriguez’s decision may be read here:

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