The battle to get some trial courts to follow the law governing counteraffidavits filed under § 18.001, CPRC, to contest the reasonableness and necessity of plaintiff’s medical expenses continues.
In a per curiam opinion in In re Chefs’ Produce of Houston, Inc. and Mario Alberto Rangel (No. 22-0286; delivered April 21, 2023), the Texas Supreme Court conditionally issued a writ of mandamus ordering a Harris County trial court to vacate its order striking defendants’ expert’s counteraffidavit and testimony at trial. The case arose from a traffic accident that sent plaintiff to the hospital complaining of back, neck, and shoulder pain. Plaintiff later received a shoulder and back MRI, which showed that he suffered from degenerative damage in his shoulder. He went to pain management clinic, which administered a shoulder-block injection and an injection to treat arthritis, though his medical records did not indicate that he suffered from that condition. Plaintiff sued the defendants, a business owner and its employee, for negligence and served a § 18.001 affidavit stating that he had incurred over $19,000 in medical expenses. Defendants timely served a counteraffidavit, in which its expert, an anesthesiologist and pain management doctor practicing in Houston, opined that plaintiff had a preexisting shoulder injury that made the shoulder MRI unreasonable and medically unnecessary, as well as the shoulder-block injection. He further opined that the providers charged substantially inflated rates when compared to the National Medicare Fee Guideline, the Healthcare Bluebook for the Houston area, and the cash price defendants’ expert charged his own patients.
Plaintiff moved to strike the counteraffidavit and the defense expert’s testimony at trial, alleging that the affidavit improperly addressed causation and that the rate comparisons were unreliable. The trial court agreed, and the Houston [14th] Court of Appeals, in a split decision, denied defendants’ petition for writ of mandamus.
SCOTX reversed and conditionally issued the writ based on its holding in In re Allstate Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021). The Court held that the defense expert’s counteraffidavit “allows the claimant to understand ‘the nature and basic issues in controversy and what testimony will be relevant,’ such that the claimant has ‘sufficient information to enable that party to prepare a defense or response,’” thus satisfying § 18.001’s reasonable notice requirement. Moreover, if plaintiff wishes to challenge the reliability of the data used by the defense expert to controvert the reasonableness of the charges, he “can make that argument either on a motion to exclude the testimony under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), or at trial on cross examination.” The Court likewise rejected plaintiff’s argument that the trial court properly struck the counteraffidavit because it addressed causation. The Court held that although the statute provides that the counteraffidavit “may not be used to controvert the causation element of the cause of action,” nothing in the statute says “that the presence of a causation opinion in an otherwise compliant counteraffidavit renders either the counteraffidavit or the opinion invalid; rather, Section 18.001(f) simply clarifies that the causation opinion is not admissible solely by virtue of its inclusion in the counteraffidavit.”
The Court concluded its analysis by determining that, as in In re Allstate, defendants did not have an adequate remedy on appeal because striking their expert “severely compromised” their “ability to present a defense.” On top of that, the case’s discovery control plan’s deadline for designating experts had already come and gone, thereby foreclosing the defense “from presenting expert testimony at trial on key rebuttal issues, including the reasonableness and necessity of [plaintiff’s] medical expenses.”
This case presents another example of the importance of SCOTX’s error correction function. Just because we have good case law from the Court on critically important issues like § 18.001 does not mean that all trial courts will follow that law all the time. In that sense, civil justice reform is accomplished one case at a time, year after year, never in one fell swoop.
