Texas Supreme Court Opinion Regarding Controverting Section 18.001 Affidavits

On May 7, 2021, The Texas Supreme Court issued its opinion in In Re Allstate Indemnity Company, Relator granting a writ of mandamus and affirming that the trial court abused its discretion by striking a counteraffidavit served under section 18.001 of the Civil Practice and Remedies Code and precluding the offering party from contesting the reasonableness of the subject medical expenses at trial. The Court ruled that Section 18.001(f) sets forth the requirements for a compliant counteraffidavit: 1) the counteraffidavit must give reasonable notice of the basis on which the party is contesting the 18.001 affidavit and the counteraffidavit must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of the 18.001 affidavit.

Further, the Court ruled an expert not within the same field of medicine is not disqualified from testifying as to the reasonableness of medical charges by a hospital or other medical provider. The opinion also notes that Section 18.001 does not charge trial courts with determining the admissibility of an affiant’s opinions, and a trial court’s doubts about admissibility are not a proper basis for striking a section 18.001 counteraffidavit. The Court held that nothing in the text of section 18.001(f) requires that an opinion expressed in a counteraffidavit must meet the admissibility requirements for expert testimony.

Finally, the Court held that Section 18.001 is an evidentiary statute which accomplishes two things: (1) it allows for the admissibility, by affidavit, of evidence of the reasonableness and necessity of charges which would otherwise be inadmissible hearsay; (2) it permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of fact. The Court’s opinion states that nowhere does Section 18.001 provide for the exclusion of any evidence based on the absence of a proper counteraffidavit and that the failure to comply with section 18.001(f) does not demonstrate the type of intentional conduct necessary to establish a waiver of the intent to controvert the initial affidavit.

The full text of the In Re Allstate opinion is available here: In Re Allstate Indemnity Company, Relator.

Categories: Healthcare