Late yesterday TCJL filed an amicus brief in the Texas Supreme Court in In Re Leon Paul Savoy, Texas Curb Cut, LP, and Texas Cutting & Coring, LP (No. 20-0843). This personal injury lawsuit arises out of a February 2016 traffic accident in Travis County. The plaintiff seeks damages for alleged personal injuries, including medical expenses, in excess of $1,000,000. The plaintiff submitted an affidavit under § 18.001(b), CPRC, attesting to the reasonableness and necessity of the medical charges. Relators presented counter-affidavits contesting the reasonableness of the medical charges, as permitted under § 18.001(e). The plaintiff filed a motion to strike the Relators’ counter-affidavits.After a hearing, the trial court signed orders striking Relators’ counter-affidavits.
Relators, who are represented by the Chamberlain McHaney firm here in Austin, filed a Petition for Mandamus in the Third Court of Appeals last May. In an opinion authored by Justice Smith and joined by Justice Kelly and Chief Justice Rose, the court of appeals denied Relators’ Petition for Writ of Mandamus as to the Chapter 18 counter-affidavits. Additionally, the Court of Appeals judicially embossed a trial expert exclusionary component, conflating Chapter 18 practice with Robinson practice and procedure. See In re Leon Paul Savoy et al, No. 03-19- 00361-CV, 2020 WL 4726591 (Tex. App.—Austin Jul. 30, 2020). The court of appeals denied relators’ Motion for Rehearing on September 2, 2020. Relators now seek review from the Texas Supreme Court.
TCJL’s brief details the legislative history of § 18.001, noting that the Legislature enacted the statute to streamline the submission of medical records by substituting the filing of an affidavit rather than the bills themselves. The statute gives the defendant the right to file a counter-affidavit challenging the reasonableness of the charges, as it did in this case. As the statute was designed, once a counter-affidavit is filed, the parties return to square one, and the reasonableness of the charges becomes an issue for the trier of fact. In recent years, however, trial courts have begun to strike the defendant’s counter-affidavits on the basis that medical billing experts are not physicians and, consequently, cannot give expert testimony. Nothing in § 18.001 says that a counter-affidavit must be given by a physician, only “by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.” § 18.001(f).
As TCJL’s brief argues with respect to the history and intent of § 18.001:
This legislative history plainly shows that § 18.001 has yet to become a bone of legislative contention between the plaintiffs’ and defense bars and the business and health care communities. Instead, changes to the statute have been undertaken in the spirit of streamlining the affidavit process and making it easier for parties and courts to manage discovery with a minimum of overhead cost. TCJL began to hear reports a few years ago, however, that some trial courts were improperly using § 18.001 to (1) exclude defense billing experts, (2) bar defendants from contesting the reasonableness of medical charges at trial, and (3) accept expense affidavits as conclusive evidence of the reasonableness and necessity of medical charges. We are now asking this Court to put a stop to an unusually blatant case of legislating from the bench.
The Court of Appeals felt that the extraordinary remedy of mandamus should not issue in this case because the defendant has another remedy on appeal. The court thus sidestepped the question that, in view of the undisputed legislative history of this statute, begs an answer: did the trial court—or any trial court acting in the same way—abuse its discretion by reading something into § 18.001 that not only does not exist, but accomplishes precisely the opposite result intended by the Legislature (not to mention those most affected by the statute)? The court of appeals reasoned that the defendant could still contest the reasonableness of the charges, even without the testimony of its billing expert. Perhaps so, but that is beside the point. Rather than emphasizing the waste of judicial resources that would occur if this single case were sent back for trial without the central piece of the defense’s case, as the court of appeals decided, we think it makes more sense to consider the immense waste of judicial resources involved in hearing repetitive, piecemeal appeals across the state that raise the same question presented here. There is no other adequate remedy when a trial judge declines or refuses to follow the law as written than recourse to this Court. If we are going to allow trial judges to hold defendants to higher standards for controverting affidavits than we hold claimants, the Legislature should make that call, not trial judges.
Relators filed a Petition for a Writ of Mandamus yesterday, followed immediately by TCJL’s brief. This case carries immense significance because it is the first one to get to SCOTX on the issue of counter-affidavits. Allowing trial judges to circumvent the § 18.001 process undermines the paid or incurred rule and severely weakens the 2003 tort reforms, both in the area of medical malpractice and in other personal injury actions. We urge SCOTX to enforce the plain terms of the statute on the trial courts of the state.