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When someone gets hurt in a personal injury case, whether it’s a slip and fall or a car accident, their medical bills don’t show up in court by magic – someone has to prove those bills were fair, reasonable, and necessary. In most cases, that means hiring a doctor or expert to testify about those bills – this required testimony can be very costly. Texas has a “shortcut” for this outlined in Section 18.001 of the Texas Civil Practice and Remedies Code. That shortcut now has a new wrinkle, thanks to the Texas Supreme Court’s decision in Ortiz v. Nelapatla.
What is the “shortcut?”
Under Section 18.001, an injured person (the Plaintiff) can skip hiring an expert witness by submitting a sworn affidavit from their medical provider. That affidavit simply says, “This bill was reasonable, and this treatment was necessary.” If the other side (the Defendant) does not object, that affidavit alone is enough evidence for a jury to award those costs.
But the Defendant can fight back by filing a counter-affidavit, also known as a controverting affidavit, which is essentially a sworn affidavit from the Defendant’s expert disputing some or all of the charges. Once that happens, the Plaintiff generally cannot rely on the “shortcut” anymore and instead needs to bring a live, in-person expert to testify to prove the disputed costs.
The new wrinkle from Ortiz v. Nelapatla
Here is where things get messy. In a Target parking lot fender-bender in McKinney, Texas, Plaintiff Ortiz sued Defendant Nelapatla and submitted medical bills from three providers totaling about $19,875. Defendant Nelapatla didn’t challenge all of it – his expert only disputed portions of two of the three bills. For example, one expert said certain physical therapy charges were too high but agreed the rest of the treatment was fair and reasonable.
Even so, when the case got to trial, the judge threw out all the evidence from those two partially disputed providers – not just the challenged portions, but also the parts nobody disputed. The reasoning was that once any part of a bill is challenged, the whole affidavit becomes worthless unless backed up by expert testimony. Plaintiff Ortiz ended up being able to show evidence of only one bill, limiting her recovery to $2,210 – the only bill that was never challenged at all, even though several thousand dollars of Plaintiff Ortiz’s other claimed costs were essentially unopposed.
Plaintiff Ortiz appealed, but the Court of Appeals agreed with the trial court. So, she took it to the Texas Supreme Court.
The Supreme Court decides
The Texas Supreme Court sided with Plaintiff Ortiz. The Court ruled that a counter-affidavit only cancels the shortcut for the specific charges it actually disputes – not the entire bill. If a Defendant’s expert challenges $1,000 out of a $5,000 medical bill, the Plaintiff can still use the affidavit shortcut to prove the other $4,000 is reasonable and necessary. Only the disputed $1,000 needs live expert testimony to survive.
The Supreme Court also ruled that the Defendant’s own counter-affidavit can, in some situations, actually help the Plaintiff. If the Defendant’s expert admits that part of the charge is reasonable – for instance, saying “of this $2,200 charge, $2,090 was fair and reasonable” – the Plaintiff can point to that admission as evidence supporting that portion of the bill.
Practically, this means a Plaintiff facing a partial challenge has three choices: 1) they can hire an expert to fight for the whole amount; 2) accept the challenge and claim only the undisputed part; or 3) mix and match – using the affidavit shortcut for uncontested charges while bringing in expert testimony, or pointing to the Defendant’s expert’s own admissions, for the disputed ones.
Why It Matters
The ruling narrows the effect of a partial counter-affidavit. A Defendant’s challenge to some charges does not necessarily remove the entire medical bill from consideration; instead, the disputed charges require additional proof, while any undisputed charges may still be supported through the Section 18.001 affidavit process. Ortiz also establishes a new avenue for Plaintiff to show evidence supporting medical bills: in some circumstances, admissions contained in the Defendant’s own expert affidavit may be used as evidence supporting the reasonableness of the amounts the expert does not dispute.
The Court sent the case back to the trial court, where Plaintiff Ortiz will get another shot at proving her full medical costs – this time under the corrected rules.
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