The Use of Affidavits to Prove Reasonableness and Necessity of Medical Services
Chapter 18 of the Texas Civil Practice and Remedies code provides for the use of affidavits to prove that the amount a person was charged for a service was reasonable at the time and place that the service was provided and that the service was necessary. These affidavits are commonly used for medical services in personal injury cases as Section 18.001 applies to all civil actions except for an action on a sworn account. The affidavit must be taken before an officer with authority to administer oaths, be made by the person who provided the service or the person in charge of records showing the service provided and charge made, and must include an itemized statement of the service and charge. The statute even provides a form that may be followed. A copy of the affidavit must be served on each other party to the case.
Once an opposing party receives one of these affidavits, they are allowed to controvert the claims contained in the affidavit but no later than 30 days after the day the affidavit is received. Additionally, while the initial affidavit can be made by a custodian of records, a controverting affidavit must be made 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. By controverting a Section 18.001 affidavit, a party forces the other party to prove the reasonableness and necessity of medical services by using an expert witness at trial.
Section 18.001 is an evidentiary statute that accomplishes three things: (1) it allows for the admissibility, by affidavit, of evidence of the reasonableness and necessity of charges that would otherwise be inadmissible hearsay; (2) it permits the use of other-wise inadmissible hearsay to support findings of fact by the trier of fact; and (3) it provides for exclusion of evidence to the contrary, upon proper objection, in the absence of a properly-filed controverting affidavit. Hong v. Bennett, 209 S.W.3d 795, 800 (Tex.App—Fort Worth 2006).
It is important to note that an uncontroverted affidavit provides legally sufficient—but not conclusive—evidence to support a jury’s finding that the amount charged for a service was reasonable and necessary. Id. The statute does not provide that the evidence is conclusive and it also does not address the issue of causation. Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex.App—Eastland 1995). However, the cost of hiring an expert to controvert an affidavit before trial may be much cheaper than the damages a jury may award based solely on the sufficient evidence of medical expenses contained in an affidavit.
Texas courts have given some direction as to how to interpret this statute. The Hong case was a personal injury case that resulted from an automobile accident. About four months before trial, the plaintiff filed with the court and served on the defendant four affidavits for the authentication of medical bills in accordance with Section 18.001. These bills were from a chiropractic clinic, a medical doctor, a radiologist, and a pharmacist. The defendant timely filed a controverting affidavit by a chiropractor that asserted that none of the services provided by or referred by the chiropractic clinic were reasonable and necessary. The trial court admitted both the affidavits of the plaintiff and the controverting affidavit of the defendant.
Ultimately, the court of appeals concluded that the defendant’s affidavit was sufficient to controvert the affidavit as to the reasonableness and necessity of the chiropractor’s services. However, the affidavit was not sufficient to controvert the affidavits concerning the reasonableness and necessity of the medical doctor’s, radiologist’s, and pharmacist’s services.
Significant discretion is left to the trial court to determine whether an affidavit will qualify as a controverting affidavit and whether the person making the affidavit is qualified. In order to avoid the perils of a Section 18.001 affidavit, it is necessary to find a qualified expert to controvert the affidavit and to comply with all procedural requirements imposed by the statute.