By a 19-12 margin, the Texas Senate has passed SB 207 by Senator Charles Schwertner (R-Georgetown). This heavily negotiated bill addresses a loophole in the paid or incurred statute (§41.0105, CPRC) by which a plaintiff’s lawyer can get an agreement from a health care provider not to submit medical expenses to a third-party payor in a personal injury lawsuit. This practice allows the plaintiff to submit as evidence only the billed chargemaster rates, which no one actually pays. As amended on the Senate floor, SB 207 now provides a safe harbor from discovery for a health care provider that submits either the amounts actually paid by third-party payors, such as private insurers, Medicare, or workers’ compensation insurance, or, in the absence of actual payments, 150% of the workers’ compensation reimbursement rate for the same procedure. SB 207 further addresses a glaring abuse of §18.001, CPRC, which allows a plaintiff to submit health care expenses in an affidavit certified by a billing clerk, but does not allow a defendant to file a counter-affidavit contesting the reasonableness of the charges without hiring an expert. To make matters worse, trial judges routinely strike counter-affidavits given by medical billing experts, and even physicians with knowledge of particular procedures. SB 207 addresses these abuses by eliminating the counter-affidavit and substituting a notice to controvert in its place. It also provides that if the defendant serves notice to controvert, the plaintiff’s affidavit comes in to evidence as a business record, not an opinion of the reasonableness of the charges. As previously noted, if the health care provider submits actual payments or 150% of workers’ comp, a defendant would not have the ability to do any further discovery from the provider.
SB 207 now heads to the House, where companion legislation, HB 1617 by Rep. Greg Bonnen (R-Friendswood), has already been heard by the House Judiciary & Civil Jurisprudence Committee. TCJL would like to thank Senator Schwertner for carrying this difficult and important legislation through the Senate.