Medical Bill Review Affidavit in Texas
Medical Bill Review Affidavit and Expert Witness in Medical Billing
In Texas, a common strategy in personal injury litigation is the medical bill review affidavit. Plaintiffs use medical bill review affidavits regarding cost and medical necessity of medical bills.
Strengths and Flaws in Medical Bill Review Affidavit Strategy Execution in Litigation
But there is a flaw in this strategy. A valid approach is to use a physicians to opine medical necessity in affidavits. Specifically this scope of testimony might pertain to whether a medical procedure is associated with the injury at issue, rather than from a pre-existing condition. Texas Civil Practice and Remedies Code Section 18.001 et seq. governs the use of affidavits to prove up the reasonableness and necessity of medical treatment.
The flaw is that litigants use affidavits as a cost-effective way of presenting sufficient evidence that the amount charged is reasonable without utilizing an expert witness in medical billing. For example, when using an affidavit for medical necessity issues this may be a sound strategy. The theory is that this avoids expensive live experts at trial. However, expert review of usual customary and reasonable charges may be necessary. Plaintiffs and defendants fall into a trap if they rely on a physician regarding charges for care. Importantly, the Texas statute provides for a defendant to file a counter-affidavit in rebuttal to or disputing the claim(s) presented in the original affidavit. Our experience in many cases that have not settled at the affidavit stage in Arlington, Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, Laredo, Midland, Odessa, Plano, San Antonio, Wichita Falls, and other Texas locations indicates that increasingly, a medical coding and medical billing expert witness is needed whether for the plaintiff or the defendant.
Rules Regarding Counter-Affidavits as to Timing and Qualifications
There are some limiting provisions for a defendant wanting to timely file a counter-affidavit generally, within thirty days following the day the party receives an affidavit. Also, at least 14 days before admission at trial. There is a crucial case to consider to acquire a full understanding of the matter. In Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.-Dallas 2001, pet. denied), the Dallas Court of Appeals determined made significant determinations. These are: 1. While section 18.001(c)(2)(B) permits charges to be proved by a non-expert custodian, section 18.001(f) requires a counter-affidavit to :
(a) give reasonable notice of the basis on which the party filing it intends to controvert the claim reflected by the initial affidavit and
(b) be made by a person qualified to testify in contravention about matters contained in the initial affidavit.
On the other hand, medical bill review affidavits should be prepared in consideration of collateral source rules. In our experience, this means that the Usual Customary and Reasonable or UCR charges are admissible. What insurance pays, in this case, is not admissible. This of course, depends on the jurisdiction and applies in personal injury cases. Other standards may apply, for example, in medical billing fraud cases.
Medically Necessary Care Experts vs. Medical Billing Experts as to Reasonableness of Charges
Generally, in our experience, the defendant should ensure that a counter-affidavit is made by a medical expert regarding medically necessary care. A medical billing and coding expert opines as to the Usual Customary and Reasonable (UCR) Charges for medical care. In Hong v. Bennett, 209 S.W.3d 795, 803 (Tex. App.-Fort Worth 2006, no pet), the Court found:
Section 18.001(c)(2)(B) permits the reasonableness and necessity of charges to be proved by a non expert custodian. Tex. Civ. Prac. & Rem. Code Ann. § 18.001(c)(2)(B). In contrast, section 18.001(f) requires that a counter affidavit be made by a person qualified to testify in contravention about matters contained in the initial affidavit. Id. § 18.001(f). Section 18.002 sets out a form for an affidavit regarding the cost and medical necessity of services but provides no form for a counter-affidavit. Id. § 18.002.
Conclusion Regarding Medical Bill Review Affidavits
Medical bill review affidavits prepared by a testifying expert witness who is qualified in the jurisdiction provide a litigation ready approach. Most physicians are not trained regarding medical billing and medical coding. They can speak to causation, and medical doctors can speak to whether the care was necessary. But usually, physicians cannot and do not have access to both a tested methodology and market data on customary charges. Plaintiffs and defendants should ensure that a medical billing expert provides affidavits or counter-affidavits as to the reasonableness of charges.