In Texas, a common strategy in personal injury litigation is the medical bill review affidavit.  Plaintiffs use medical bill review affidavits regarding the cost and medical necessity of medical bills.  Physicians, for instance, provide opinions regarding medical necessity in affidavits.   Texas Civil Practice and Remedies Code Section 18.001 et seq. governs the use of affidavits to prove the reasonableness and necessity of medical treatment.   Litigants use affidavits as a cost-effective way of presenting sufficient evidence that the amount charged is reasonable.   When utilizing 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.  Notably, the 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, Fort Worth, Houston, Laredo, Plano, San Antonio, 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 to 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 refute 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.

As a result, “…a proper Section 18.001 affidavit filed by a Plaintiff is not conclusive. The affidavit may be controverted through expert testimony if a counter affidavit is not served. …”[9] Id.[10]Id.[11] Id.[12]In re Brown, at 3-4.

Conclusion Regarding Medical Bill Review Affidavits

Medical bill review affidavits,  prepared with the contingency plan by a medical billing expert qualified to provide testimony under oath provide a litigation-ready approach.   Most physicians are not trained regarding medical billing and medical coding.  They can speak to causation.  Medical doctors can speak to whether the care was necessary.  But 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.

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