i

TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………...………………………….ii

TABLE OF AUTHORITIES ……….………………………………..............................iii

The Battle Continues Over Medical Pricing and Proof: CPRC 18.001 & CPRC
41.0105 ………………………………………………….………………………………………………………1

I. Factoring Companies Can Sign an 18.001(a) Affidavit ………………………..4

II. Subrogation Agents Can Sign an 18.001(a) Affidavit …………….................4

III. Causation Challenges Without Counteraffidavits in an 18.001(e) Affidavit

……………..............................................................................................................5

IV. Counteraffidavits Under 18.001(e) Require a Greater Burden of

Proof……………………………………………………………………………………...…………….7

V. Other Notable Recent Cases: …………………………………..……………………………9

VI. Practice Pointers …………………………………………………………………...……….11

VII. Final Comment ………………………….………...………………………………………….14

ii
 TABLE OF AUTHORITIES

Cases

Allstate Indem. Co. v. Memorial Hermann Health Systems,

437 S.W.3d 570 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ……………………………15

Amigos Meat Distribs., L.P. v. Guzman,

526 S.W. 3d 511 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) ………………………….4

Barrajas v. VIA Metropolitan Transit Authority,

945 S.W.2d 207, 209 (Tex. App.—San Antonio 1997, no writ) …………………………………13

Beauchamp v. Hambrick,
901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no writ) ……………………………………6,13

Big Bird Tree Service v. Gallegos,

365 S.W.3d 173, 177 (Tex. App.—Dallas 2012, pet. denied) …………………………….…………10

Bowden v. The Med. Ctr., Inc.,

773 S.E.2d 692 (Ga. 2015) ……………………………………………………………………………………14

Castillo v. American Garment Finishers Corp.,

965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.) …………………………………………..13

Children’s Hosp. Cent. California v. Blue Cross of California,

226 Cal. App. 4th 1260, 172 Cal. Rptr. 3d 861 (Cal. Ct. App. 2014) ………………….………14

City of El Paso v. Public Utility Comm’n of Texas,

916 S.W.2d 515, 524 (Tex. App.—Austin 1995, writ dism’d by agreement) ………………13

City of Laredo v. Limon, No. 04–12–00616–CV, 2013 WL 5948129, at *6 (Tex.App.–San

Antonio Nov. 6, 2013, no pet.) …………………………………………………………………………6,8,9

Christus Health v. Dorriety,

345 S.W.3d 104, 107 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ……………….…6

Colomar v. Mercy Hosp., Inc.,

461 F. Supp. 2d 1265 (S.D. Fla. 2006) …………………………………………………………………..14

Daughters of Charity Health Services of Waco v. Linnstaedter,

226 S.W.3d 409 (Tex. 2007) ……………………………………………………….………………….2,5,14

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East Tex. Med. Ctr. V. Hernandez,
No. 12-17-00333-CV, 2018 WL 2440508 (Tex. App.—Tyler 2018, pet. denied) ………….15

Ellen v. Carr, No. A14–92–00292–CV, 1992 WL 347783, at * 3 (Tex. App.—Houston [14th

Dist.] Nov. 25, 1992, writ denied) …………………………………………………………………………13

Grove v. Overby,
No. 03–03–00700–CV, 2004 WL 1686326, at *6 (Tex. App.—Austin July 29, 2004, no
pet.) …………………………………………………………………………………..……………………………...13

Guevara v. Ferrer,
247 S.W.3d 662, 663 (Tex. 2007) …………………………….…………………………………………….5

Gunn v. McCoy,
No. 16-0125, 2018 Tex. Lexis 560, 2018 WL 3014984, at *49-56 (Tex. June 15, 2018)
………………………………………………………………………………………………….………………….….5,6

Guzman v. Jones,
804 F.3d 707 (5th Cir. 2015) ………………………………………………..………………………………..9

In Re Halliburton Energy Services, Inc.;

14-16-00969-CV, 2017 WL 124518 (Tex. App.—Houston [14th Dist] Jan. 12, 2017, no
pet.) …………………………………………………………………………………………………..………………10

Haygood v. De Escabedo,
356 S.W.3d 390 (Tex. 2011) ……………………………………………………………………..……...1,2,5

Hays & Martin v. Ubinas,

192 S.W.3d 631 (Tex. App.—Dallas 2016, pet. denied) …………………………………..………..10

Hong v. Bennett,
209 S.W.3d 795, 803 (Tex. App.—Ft. Worth 2006, no pet.). ……………………....….7,8,9,13

Katy Springs & Mfg. v. Favalora,

476 S.W. 3d 579, 601, n. 4 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied)………………………………………………………………………………….………………………....4,7

McChristian’s (Metro. Transit. Auth.) v. McChristian,

449 S.W.3d 854 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ………………………………10

McAllen Hospitals, LP v. Gomez,

2013 WL 784688 (Tex. App—Corpus Christi 2013, no writ) …………………………….………14
iv
McAllen Hospitals, LP v. State Farm,
433 S.W.3d 535 (Tex.2014) ……………………………………………………………………….………….14

Mem’l Hermann Hosp. Sys. v. Progressive Cty Mut. Ins. Co.,

355 S.W.3d 123 (Tex. App.—Houston (14th Dist.) 2011, pet. denied) …………………………15

In re Mendez,
234 S.W.3d 105 (Tex. App.—El Paso 2007, no pet.) …………………………………………………11

Mendoza v. Sandoval,
No. 13–03–359–CV, 2005 WL 977579, at *2 (Tex. App.—Corpus Christi Apr.28, 2005, no
pet.) …………………………………………………………………………………………………………………..13

Moreno v. Ingram,
454 S.W.3d 186 (Tex. App.—Dallas 2014, no writ history) …………………………………………9

In re Natl. Lloyds Ins. Co.,

449 S.W.3d 486 (Tex. 2014) …………………………………………………………………….…..………11

In re North Cypress Medical Center Operating Co., Ltd.,

--- S.W.3d ---, 2018 WL 1974376 (Tex. Apr. 27, 2018) …...……………….………………………14

Nguyen v. Lijun Zhang,

No. 01–12–01162–CV, 2014 WL 4112927, at *7 (Tex. App.—Houston [1st Dist.] Aug. 21,
2014, no pet.) (mem.op.) ………………………………………………………………..……………..…….6

Nye v. Buntin,
No. 03–05–00214–CV, 2006 WL 2309051, at *4 n. 1 (Tex. App.—Austin Aug.11, 2006, no
pet.) …………………………………………………..……………………………………………………….……..13

Owens v. Perez ex rel. San Juana Morin,

158 S.W.3d 96, 110 (Tex. App.—Corpus Christi 2005, no pet.) ………………………….……..13

Ozlat v. Priddy,
No. 11–96–240–CV, 1997 WL 33798173, at *3 (Tex. App.—Eastland May 29, 1997, writ.
denied)….……………………………………………………………………………………………………..…….13

Posada v. Romero,
2007 WL 1228668 (Tex. App.—Ft. Worth 2007, no writ) ………………………….…………….12

Primoris Energy Services Corp. v. Myer;

2018 WL 4136186 (Tex. App.—Houston [1st Dist.] 2018 Aug 30, 2018) ………………….……4

v
Rahimi v. United States,474 F. Supp. 2d 825, 828 (N.D. Tex. 2006).…………….………….12

Reyna v. Aldaco,
No. 07-04-0033-CV, 2005 Tex. App. LEXIS 10118, at *6 (Tex. App.—Amarillo)….………..7

Rodriguez–Narrera v. Ridinger,
19 S.W.3d 531, 532 (Tex. App.—Fort Worth 2000, no pet.) ………………………..……………….6

Roundtree v. Cavazos,
2017 WL 2730422 (Tex. Civ.—Dallas 2017, no pet.) ………………………………………...……….8

Rumzek v. Lucchesi,
543 S.W.3d 327 (Tex. App.—El Paso 2017, pet. denied) …………………………………….……….6

In re: Siroosian,
449 S.W.3d 920, 924 (Tex. App.—Fort Worth 2014, no pet.) …………………………..……….11

Sloan v. Molandes,
32 S.W.3d 745, 749 (Tex. App.—Beaumont 2000, no writ) ……………………….……………….5

Speegle v. Harris Methodist Health Sys.,

303 S.W.3d 32 (Tex. App—Ft. Worth 2009, pet. denied) ………………………………………....15

Temple Univ. Hosp., Inc. v. Healthcare Mgmt. Alternatives, Inc.,

832 A.2d 501 (Pa. Super. Ct. 2003) …………………………………………………………………..…..14

Ten Hagen Excavating, Inc. v. Castro-Lopez,

503 S.W.3d 463 (Tex. App.—Dallas 2016, pet. denied) …………………………………………6,13

Texaco, Inc. v. Sanderson,

898 S.W.2d 813, 814 (Tex. 1995) ………………………………………….…………………….…..………2

Travelers Ins. Co. v. Martin,

28 S.W.3d 42, 48 (Tex. App.—Texarkana 2000, no pet.) …………………….……………………8

In Re Travis County,
2017 WL 5078006 (Tex. App.—Austin 2018, denied; writ of mandamus denied at SCOTX
as moot) ………………………………………………………………………………….…….…………..………..9

Turner v. Peril,
50 S.W.3d 742, 747 (Tex. App. —Dallas 2001, no pet.) ………………………………….……………8

Walker v. Ricks,
vi
101 S.W.3d 740, 747–48 (Tex. App.—Corpus Christi 2003, no pet.) ………………………….13

Statutes:

CPRC 18.001, et seq…………………………………………………………………………………..…..passim

CPRC, Chapter 27 ………………………………………………………………………………………………..15
CPRC Section 41.0105 …………………………………………………………….…………………... passim
Tex. R. Civ. P. 192.3(a)…………………………………………………………………………………………...2
Texas Labor Code, Sec. 413.032 …………………………………………………………………………...10
TEX. PROP. CODE § 55.001, et seq. ............................................................................. .passim
Texas Rules of Evidence 702 …………………………..……………………...…………………………….2

vii
 The Battle Continues Over Medical Pricing and Proof:
CPRC 18.001 & CPRC 41.0105

Attorneys are faced with ongoing challenges on the admissibility of medical and billing
records in personal injury cases. This area of law continues to develop with conflicting
decisions from the appellate courts.

The two primary statutes attorneys engage with are: “Paid or Incurred” found in the
Civil Practice & Remedies Code (“CPRC”) Section 41.0105, and the medical records
affidavit procedures found in CPRC 18.001. The “Paid or Incurred” statute states in
relevant part, “[i]n addition to any other limitation under law, recovery of medical or
health care expenses incurred is limited to the amount actually paid or incurred by or
on behalf of the claimant.”

The Texas Supreme Court’s groundbreaking decision in Haygood v. De Escobedo forever

changed the landscape in the application of the “Paid or Incurred” statute to personal
injury claims and the requisite admissibility of evidence of medical proof. The Court
discussed medical billing practices parties are faced with:

“Charges for health care, once based on the provider’s costs and profit
margin, have more recently been driven by government regulation
and negotiations with private insurers. A two-tiered structure has
evolved: “list” or “full” rates sometimes charged to uninsured
patients, but frequently uncollected, and reimbursement rates for
patients covered by government and private insurance.... [F]ew
patients today ever pay a hospital’s full charges, due to the prevalence
of Medicare, Medicaid, HMOs, and private insurers who pay
discounted rates. Hospitals, like health care providers in general, feel
financial pressure to set their full charges as high as possible, because
the higher the full charge the greater the reimbursement amount the
hospital receives since reimbursement rates are often set as a
percentage of the hospital’s full charge....”

“Providers commonly bill insured patients at list rates, with

reductions to reimbursement rates shown separately as adjustments
or credits. Portions of bills showing only list charges are admitted in
evidence, with proof of reasonableness coming from testimony by the
provider, or more often, by affidavit of the provider or the provider’s
records custodian as permitted by section 18.001 of the Texas Civil
Practice and Remedies Code.” Id. at 393-94.

The “collateral source rule” under common law was designed to stop a defendant’s
windfall from a benefit intended for a plaintiff. The Second Restatement of Torts

1
classifies collateral source benefits as either “payment made to” or “benefits conferred
on the injured party” from a source independent of the tortfeasor. The Court in Haygood
stated: “The collateral source rule reflects ‘the position of the law that a benefit that is
directed to the injured party should not be shifted so as to become a windfall for the
tortfeasor.’ To impose liability for medical expenses that a health care provider is not
entitled to charge does not prevent a windfall to a tortfeasor; it creates one for a
claimant, as we recently wrote in Daughters of Charity Health Services of Waco v.
Linnstaedter.” Id. at 396. The Court was faced with a situation where a hospital had
provided medical treatment to a patient covered by worker’s compensation insurance,
submitted the bill to the carrier and was paid; then the hospital sought to collect the
difference between the payment received and the unpaid balance of the bill through the
use of a Chapter 55, Texas Property Code hospital lien. The Court opined in part that
the payment for hospital services from the Workers’ Compensation carrier was deemed
reasonable as a matter of law and that under Chapter 55, the hospital was limited to
collecting only the “reasonable and regular rate” for their services and any attempts to
collect over and above the amount received was considered and deemed a windfall to
the hospital. The Courts have concluded that the amount of past medical expenses that
is recoverable by a plaintiff—and admissible at trial—is the amount that has been, or
will be, paid by or on behalf of the plaintiff. Id. at 399; see also Tex. Civ. Prac. & Rem.
Code 41.0105.

Thus, under settled Texas law, only the following information is relevant and admissible
regarding a plaintiff’s recoverable medical expenses in a personal injury case:

(1) the necessity of the medical services provided to the plaintiff;

(2) the reasonableness of the charges for the medical services

provided to the plaintiff; and

(3) the amount actually paid or incurred by or on behalf of the

plaintiff—or, in other words, the medical expenses that have
been or must be paid by or for the claimant.

Anything else is irrelevant, and irrelevant information is outside the scope of

permissible discovery. See Tex. R. Civ. P. 192.3(a); Texaco, Inc. v. Sanderson, 898
S.W.2d 813, 814 (Tex. 1995) (“Discovery is limited to matters relevant to the case.”)

CPRC 18.001 is an evidentiary statute that provides plaintiffs in personal injury lawsuits
an alternative to bringing experts to testify at trial as to the reasonableness and
necessity of the charges for medical services the plaintiff received from the injury being
litigated. It is a powerful tool in the attorney’s arsenal to hold down costs because
18.001 is an exception to the general hearsay rule that would otherwise require expert
testimony to establish the reasonableness and necessity of the services and charges at

2
issue. Texas Rules of Evidence 702 traditionally acted as the gatekeeper as to who was
allowed to testify as to the reasonable and necessary services and charges. The law in
this area has continued to develop as to WHOM is allowed to execute an 18.001 affidavit.
The relevant statute is stated below:

(a) This section applies to civil actions only, but not to an action on a sworn
account.
(b) Unless a controverting affidavit is served as provided by this section, an
affidavit that the amount a person charged for a service was reasonable at the time
and place that the service was provided and that the service was necessary is
sufficient evidence to support a finding of fact by judge or jury that the amount
charged was reasonable or that the service was necessary.
(c) The affidavit must:
(1) be taken before an officer with authority to administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the service provided and
charge made; and
(3) include an itemized statement of the service and charge.
(d) The party offering the affidavit in evidence or the party’s attorney must serve
a copy of the affidavit on each other party to the case at least 30 days before the
day on which evidence is first presented at the trial of the case. Except as provided
by the Texas Rules of Evidence, the records attached to the affidavit are not
required to be filed with the clerk of the court before the trial commences.
(e) A party intending to controvert a claim reflected by the affidavit must serve a
copy of the counteraffidavit on each other party or the party’s attorney of record:
(1) not later than:
(A) 30 days after the day the party receives a copy of the affidavit; and
(B) at least 14 days before the day on which evidence is first presented at
the trial of the case; or
(2) with leave of the court, at any time before the commencement of evidence at
trial.
(f) The counteraffidavit must give reasonable notice of the basis on which the party
serving it intends at trial to controvert the claim reflected by the initial affidavit
and must be taken before a person authorized to administer oaths. 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
all or part of any of the matters contained in the initial affidavit.

Section 18.001(c) of the Texas Civil Practice and Remedies Code provides that affidavits
must be made by:

(A) the person who provided the service; or

3
 (B) the person in charge of records showing the service provided and charge made.

In interpreting this provision, disputes have arisen over whether Section 18.001 permits
a person who is neither the service provider nor the custodian of records for the service
provider to execute a valid 18.001 Affidavit.

I. Factoring Companies Can Sign an 18.001(a) Affidavit:

Two appellate courts have directly considered this question in the context of affidavits
executed by factoring companies and determined that such companies, as assignees of
the service providers from whom accounts receivable have been purchased, “stand ... in
the shoes of [their] assignor[s],” and therefore can properly execute an 18.001 affidavit
averring to the reasonableness and necessity of the services provided and the charges
made. Amigos Meat Distribs., L.P. v. Guzman, 526 S.W. 3d 511 (Tex. App. - Houston [1st
Dist.] 2017, pet. denied); Katy Springs & Mfg. v. Favalora, 476 S.W. 3d 579, 601, n. 4
(Tex. App.—Houston [14th Dist.] 2015, pet. denied). In both cases, evidence was
presented at trial that the plaintiffs remained liable for the full value of the medical
expenses regardless of the discount the medical provider accepted from the factoring
company. However, Primoris Energy Services Corp. v. Myers, 2018 WL 4136186 (Tex.
App.—Houston [1st Dist.] Aug 30, 2018, 2018), in deciding a similar situation involving
a factoring company, WITHOUT evidence that the plaintiff remained liable to the
factoring company for the undiscounted bill of the hospital after the assignment, the
Court found reversible error where the defendant was prohibited from introducing
evidence about the discounts the hospital “usually accepting between 25–40% of the
amount charged.” The court noted that there was “No evidence in the record that Myers
was not liable for the payment in full for the bill, regardless of whether Spring Central
Hospital or Medfin ultimately accepted less than full payment.” Id. at 13. But in Guzman
and Favalora, both courts noted that the plaintiff was liable for the full amount of the
billed charges.

II. Subrogation Agents Can Sign an 18.001(a) Affidavit

The Texas Supreme Court recently held in Gunn v. McCoy that 18.001 affidavits
executed by the subrogation agents for the health insurance carriers that had paid the
plaintiff’s medical expenses were proper. In discussing the holding, the Court stated
that the plain language of the statute does not explicitly require such affidavits to be
made by health care providers or their employees only, but also addressed and
considered the realities of the current health care system. The Court noted that:

Health care costs today are complex, and the price of a

particular provider’s services may depend on many factors,
including geography, experience, location, government
payment methods, and the desire to make profit ...[and is

4
 further complicated by the development of] a two-tier pricing
system: (1) the “list price,” which serves as a starting point for
negotiations, similar to the sticker price one might find when
purchasing a vehicle; and (2) the “actual price,” which is what
private insurers, Medicaid and Medicare, and other groups
actually pay after negotiations. Gunn v. McCoy 554 S.W. 3d
645, 673 (Tex. 2018)

With these issues noted above from Gunn, the Court concluded that, “with national and
regional bases on which to compare prices actually paid, insurance agents are generally
well-suited to determine the reasonableness of medical expenses.” Id. at 673 This
opinion continues to clarify those persons qualified to execute a 18.001(a) affidavit as
persons other than the medical service provider or the employees of the medical service
provider–and now in the context of affidavits executed by insurance agents–be on the
look on that this opinion may open the door for other Texas courts that billing experts,
rather than medical doctors, are better qualified by their knowledge, skill, experience,
etc., to challenge or controvert the reasonableness of medical charges reflected in these
affidavits. The Texas Supreme Court acknowledges in several opinions beginning in
Daughters of Charity Health Services of Waco v. Linnstaedter, that given the complexity
of today’s health care system, “it is not uncommon or surprising that a given medical
provider may have no basis for knowing what is a ‘reasonable fee’ for a specific service.”
Gunn at 53.

III. Causation Challenges Without Counteraffidavits in an 18.001(e)

Affidavit

In Sloan v. Molandes, 32 S.W.3d 745, 749 (Tex. App.—Beaumont 2000, no writ), the
Defendants asserted and the court recently agreed, holding that causation has nothing
to do with the 18.001 affidavits. “Compliance with the statute does not establish that the
amount of the damages shown to be reasonable and necessary was caused by the
defendant’s negligence; and therefore, does not establish the plaintiff’s entitlement to
those damages as a matter of law.” Id. When causation is challenged and the injuries
lay outside the common knowledge of laypersons, expert testimony is required.
Conversely, if the injury is such a kind that a layperson may have common knowledge,
expert testimony is not required as “causation to certain types of pain, bone fractures,
and similar basic conditions following an automobile collision can be within the
common experience of lay jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex.
2007) In contrast, injuries relating to complicated medical issues such as cancer,
traumatic brain injury, skull fractures, and infections, or that involved a more
complicated timeline, such as delay in treatment or a significant prior medical history,
likely require expert testimony. Simply because a counteraffidavit is not presented by
the defense, a jury does not have to award medical expenses because in the discretionary
fact finding judgment of the jury, the jury may find that the medical services provided

5
were not related to the injury and not necessary. The burden of proof as to causation
continues to be the plaintiff’s regardless of whether or not a counteraffidavit is filed.

An affidavit of a personal injury plaintiff’s medical provider as to reasonableness and

necessity of past medical expenses is not conclusive evidence as to the amount of
recoverable damages for past medical expenses. A jury is not required to award a
plaintiff the amount of damages established in the affidavit but if it chooses to do so,
the affidavit is sufficient evidence to support the finding that the past medical expenses
were reasonable and necessary. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503
S.W.3d 463 (Tex. App.—Dallas 2016, pet. denied).

The court in Rumzek v. Lucchesi, 543 S.W.3d 327 (Tex. App.—El Paso 2017, pet. denied);
was confronted with the issue of causation between the medical services provided and
the accident. In that case, the motorist’s timely filed uncontroverted medical record
affidavits and billing records before the trial of his automobile negligence action, but
this alone did not entitle the motorist to an award of damages. The statute
governing affidavits concerning cost and necessity of services simply allowed the
motorist to avoid the necessity of presenting expert testimony as to the reasonableness
of his medical expenses and the motorist was still required to establish entitlement to
recover such expenses by establishing a causal nexus between the accident and his
injuries. Id.

In this context, the court in Gunn v. McCoy, 489 S.W.3d 75, 102 (Tex. App.—Houston
[14th Dist.] 2016), review granted (Dec. 8, 2017), aff’d, 554 S.W.3d 645 (Tex. 2018),
reh’g denied (Sept. 28, 2018) stated that section 18.001 affidavits do not, however,
establish the requisite causal link between the occurrence and the plaintiff’s medical
expenses, citing Nguyen, 2014 WL 4112927, at *7; Dorriety, 345 S.W.3d at 108; see
also Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no writ)
(section 18.001 does not address causation). Although not conclusive as to the amount
of damages, a proper section 18.001 affidavit constitutes legally sufficient evidence to
support findings of fact as to reasonableness and necessity. Christus Health v.
Dorriety, 345 S.W.3d 104, 107 (Tex.App.—Houston [14th Dist.] 2011, pet.
denied); see Tex. Civ. Prac. & Rem. Code § 18.001(b) (West 2011); Nguyen v. Lijun
Zhang, No. 01–12–01162–CV, 2014 WL 4112927, at *7 (Tex. App.—Houston [1st Dist.]
Aug. 21, 2014, no pet.) (mem.op.). So long as the requirements of section 18.001 are met
and the opponent does not file a proper controverting affidavit, a party may dispense
with the inconvenience and expense of obtaining an expert to testify as to the necessity
and reasonableness of expenses. Rodriguez–Narrera v. Ridinger, 19 S.W.3d 531, 532
(Tex. App.—Fort Worth 2000, no pet.). However, by filing a proper controverting
affidavit, the opposing party can prevent the offering party’s affidavits from being used
as evidence. City of Laredo v. Limon, No. 04–12–00616–CV, 2013 WL 5948129, at *6
(Tex. App.—San Antonio Nov. 6, 2013, no pet.); Hong, 209 S.W.3d at 801. By filing a
proper controverting affidavit, the opposing party can require the offering party to

6
prove at trial the reasonableness and necessity of past medical expenses through expert
testimony. Nguyen, 2014 WL 4112927, at *7. The Gunn v. McCoy court determined there
is no requirement that an affidavit submitted under section 18.001(c)(2)(B) be made by
a records custodian for a medical provider. Katy Springs & Mfg., Inc. v. Favalora, 476
S.W.3d 579, 605 (Tex. App.—Houston [14th Dist.] 2015, no. pet. h.) (construing
disjunctive “or” in section 18.001(c)(2) in rejecting argument that records custodian
affiant for company engaged in business of medical accounts receivable financing or
“factoring” was not a proper affiant because he was not a medical provider). Billing
summaries have also been held to comply with section 18.001(c)(2).

In the end, be mindful whether the defendant controverts or not. Although the jury is
NOT bound by the 18.001 Affidavit, if the injuries are within the common knowledge of
a layperson, the jury is free to determine the causation element between the injury and
the medical services provided and proffered through the use of 18.001 affidavits. While
an uncontroverted affidavit 18.001 may provide a streamlined procedure for a party to
submit evidence of the reasonableness and necessity of services and expenses without
paying an expert to appear at trial, many circuits in Texas, as discussed later, found the
jury is not bound by the uncontroverted affidavits: “[N]othing in section 18.001
makes the statements of non-expert affiants on the issues of reasonableness and
necessity any more binding on factfinders than the live testimony of a medical expert.”
Reyna v. Aldaco, No. 07-04-0033-CV, 2005 Tex. App. LEXIS 10118, at *6 (Tex. App.—
Amarillo Dec. 6, 2005, no pet.).

IV. Counteraffidavits Under 18.001(e) Require a Greater Burden of Proof

Section 18.001 can save significant time and cost to plaintiffs, but for controverting
parties, 18.001 offers a challenging and expensive obstacle for the defendant as it is
widely acknowledged that, “[T]he statute places a greater burden of proof on
counteraffidavits to discourage their misuse in a manner that frustrates the intended
savings.” Hong v. Bennett, 209 S.W.3d 795, 803 (Tex. App.—Ft. Worth 2006, no pet.).
Therefore, for a defendant to properly controvert a proper 18.001 affidavit, keep in mind
three concepts the defendant must meet: (1) deadlines, (2) notice and (3) qualifications.

Deadline: A defendant must serve a counteraffidavit on each party not later than: 30
days after receiving a 18.001 affidavit AND at least 14 days before the day on which
evidence is FIRST presented at trial. If a defendant misses this deadline, they must seek
leave of court at any time before the commencement of evidence.

Notice: Section 18.001 tells us that “[t]he counteraffidavit must give reasonable notice
of the basis on which the party serving it intends at trial to controvert the claim reflected
by the initial affidavit,” but what does that mean? The expert must state his/her opinion
that a charge was unreasonable or services were unnecessary; the expert must provide
expert opinion evidence and explain why/how they came to that conclusion (See Texas

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Rules of Evidence, Rule 702 challenges). Further, as in any valid affidavit, conclusory
statements do not work. The affiant should be explicit as to what is being
controverted and why they disagree with the reasonableness or necessity of the medical
services provided. A general conclusion complaining about the 18.001 affidavit will not
work and is not a proper counteraffidavit, as seen below.

Qualifications: The controverting affiant must be “a person who is qualified, by

knowledge, skill, experience, training, education, or other expertise.” Texas courts
disqualify controverting experts who do not sufficiently explain why they are qualified
to opine as to the specific issues that are relevant to the expert’s general field of
expertise.

For example, an orthopedic surgeon specializing in spinal cord injuries is not qualified
to testify about the reasonableness and necessity of chiropractic services, or for that
matter anything outside his orthopedic surgery specialty without expressing additional
and relevant training or experience. See Travelers Ins. Co. v. Martin, 28 S.W.3d 42, 48
(Tex. App.—Texarkana 2000, no pet.) and Turner v. Peril, 50 S.W.3d 742, 747 (Tex.
App.—Dallas 2001, no pet.) Similarly, a chiropractor is generally not qualified to render
expert opinion regarding non-chiropractic medical expenses without explaining
additional training, knowledge, or experience beyond chiropractic care. See Hong v.
Bennett, 209 S.W.3d at 804. Lessons learned on qualifications—make sure your expert
does more than simply state that they are qualified. Your expert must explain how they
are qualified by identifying their specific knowledge, skill, experience, training, or
education that is relevant to the particular issues being controverted.

The court in City of Laredo v. Limon struck the counteraffidavit proffered by the
defendant whose expert doctor was an orthopedic surgeon. Defendant sought to
challenge charges for various services, including emergency room services, chiropractic
services, radiology services, a hospital’s surgical services, anesthesiology services,
pathology services, and services by orthopedic surgeons. The defendant used Dr. Lee,
as he was required to demonstrate that he was qualified to testify regarding all of these
matters. Dr. Lee only listed his qualifications as a licensed physician and board certified
orthopedic surgeon. Due to Dr. Lee’s failure to demonstrate that he was qualified to
controvert any bills other than the bills of an orthopedic surgeon, the trial court was
NOT required to parse through the affidavit and strike only those portions pertaining
to non-orthopedic surgeon services. The City did not request such a ruling and did not
offer to redact the counteraffidavit; accordingly, the counteraffidavit was struck in its
entirety.

The court in Roundtree v. Cavazos, 2017 WL 2730422 (Tex. Civ.—Dallas 2017 no

petition) dealt with another conclusory opinion like that in Limon. Although Dr. West
does state once in the affidavit that “a segment of the treatment rendered was not
medically necessary and the bills for same were not reasonable,” there is no discussion

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of the amounts charged for any service and why the amounts charged were
unreasonable for the time and place the service was provided. These conclusions
without any factual substantiation are insufficient to controvert the reasonableness of
the medical bills in question. See City of Laredo at *7 (Conclusory statement that doctor
was familiar with reasonable and customary charges for various providers’ services in
south Texas was insufficient to controvert reasonableness of other professional bills.)

The court in Moreno v. Ingram, 454 S.W.3d 186 (Tex. App.—Dallas 2014, no writ history)
is an example of where defendant used a chiropractor as an expert in a counteraffidavit
who was not allowed to testify on non-chiropractic past medical expenses. The use of
chiropractors in counteraffidavits to counter opinions offered in non-chiropractic areas
of medical treatment in a 18.001 affidavit does not meet the qualification requirements
of 18.001(f) and does not meet the minimum thresholds of Texas Rules of Evidence 702.
The court accordingly struck the chiropractors affidavit. Id.

Finally, in another case where a court was faced with a similar challenge in Hong v.
Bennett., 209 S.W.3d 795, 804 (Tex. App.—Fort Worth 2006, no pet.), the court did not
allow the chiropractor’s affidavit to controvert reasonableness and necessity of medical
doctor’s, radiologist’s, and pharmacist’s services, where the affidavit did not state how
the chiropractor was qualified to opine on those subjects.

V. Other Notable Recent Cases:

In Re Travis County, 2017 WL 5078006 (Tex. App.—Austin 2018, denied; writ of

mandamus denied at SCOTX as moot) - Plaintiff was rear ended by a county employee,
plaintiff had health insurance, presented the insurance at the ER, later received
treatment from a provider under a LOP, plaintiff served an 18.001 affidavit for the
amount of the bill, defendant filed a counteraffidavit asserting the reasonable range
between Medicare and Workers’ Comp reimbursement rates; then defendant
propounded DWQ on the provider, seeking production of provider fee agreement
between the provider and health insurer and the reimbursement amount to the provider
if the plaintiff presented his insurance for provider charges vs. what the charges were
under the LOP; provider filed a motion to quash. Defendant claimed provider
agreements were discoverable under mitigation of damages, trial court granted the
provider’s motion to quash, Defendant filed a Petition for Writ of Mandamus with the
Austin Court of Appeals, mandamus was denied, then Defendant appealed to SCOTX,
which asked for full briefing. After briefs (including amicus briefs) were filed and while
the appeal was pending, plaintiff nonsuited all past and future claims for medical care,
and SCOTX granted plaintiff’s motion to dismiss the writ of mandamus as moot on
November 16, 2018.

Guzman v. Jones, 804 F.3d 707 (5th Cir. 2015) – Guzman, covered under Workers’ Comp,
did not use Workers’ Comp insurance for any of the medicals, presented billed medical

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expense with no payment or reduction under CPRC 41.0105 “Paid or Incurred,”
defendant sought to exclude bill as Guzman was eligible for Medicaid and Workers’
Comp, and the court denied the motion. There are no meaningful distinctions between
Guzman’s situation and McChristian’s (Metro. Transit. Auth. V. McChristian, 449
S.W.3d 854 (Tex. App.—Houston [14th Dist.] 2014, no pet.) Guzman was actually billed
the amounts awarded by the jury for his medical expenses, and he remains under a legal
obligation to pay the billed amounts to his medical providers. Reduced prices that he
may have received had he participated in health benefits or insurance programs for
which he may have been eligible are irrelevant according to Texas law. As Texas law
permits consideration of Guzman’s medical bills, the district did not err—and most
certainly did not abuse its discretion—in allowing evidence of Guzman’s medical bills
into the trial.

Big Bird Tree Service v. Gallegos - The Dallas Court of Appeals permitted an uninsured
plaintiff to recover his billed medical expenses even though the hospital waived his
charges through its own charitable program because the hospital was under no
contractual obligation to provide for the plaintiff’s care and reserved the right to collect
from the plaintiff if he prevailed in his suit. 365 S.W.3d 173, 177 (Tex. App.—Dallas 2012,
pet. denied).

Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 854 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) - In another case, the Fourteenth Court of Appeals in Houston
allowed recovery for the billed medical expenses of an uninsured plaintiff. Writing for
that court, Justice Boyce carefully explained: “[S]ection 41.0105 addresses the difficulty
in determining reasonable expenses for necessary medical care when “[h]ealth care
providers set charges they maintain are reasonable while agreeing to reimbursement at
much lower rates determined by insurers to be reasonable, resulting in great disparities
between amounts billed and payments accepted.” The difficulty highlighted in Haygood
does not arise in this case given the uninsured status reflected in McChristian’s medical
records; bills showing no adjustments; and McChristian’s testimony that the bills are
his responsibility and remain unpaid. This record offers no basis for a conclusion that
the medical expenses at issue here included list price charges for which the service
providers billed but had “no right to be paid.” Id. (quoting Haygood, 356 S.W.3d at 391,
396).

Hays & Martin v. Ubinas, 192 S.W.3d 631 (Tex. App.—Dallas 2016, pet. denied) – The
Texas Workers’ Compensation Act does not provide for dispute resolution when, as here,
payment is denied, not on the basis of medical necessity or the reasonableness of the
fee, but rather because the injured worker entered into a settlement agreement
specifically providing he is responsible for any unpaid medical bills under a letter of
protection notwithstanding the mandatory billing requirements of Texas Labor Code,
Sec. 413.032.

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In re: Halliburton Energy Services, Inc.;14-16-00969-CV, 2017 WL 124518 (Tex. App.—
Houston [14th Dist.] Jan. 12, 2017, no pet.)—from the 14th Court of Appeals - Halliburton
served Notices of Intention to Take Depositions by Written Questions on the custodians
of records for Alexander’s healthcare providers seeking information concerning the
amounts by which the providers would have reduced their charges had she utilized her
health insurance coverage. The trial court granted a motion to quash, the 14th Court
denied a petition for Writ of Mandamus, and SCOTX also denied the petition.

In re: Siroosian, 449 S.W.3d 920, 924 (Tex. App.—Fort Worth 2014, no pet.), a
Defendant in a car wreck case filed a motion to compel plaintiff’s non-retained, non-
testifying chiropractic doctor to answer deposition questions about software utilized by
this chiropractic clinic, collections, revenues and billings of the clinic, including political
contributions the doctor had made. The court granted mandamus relief finding
discovery about account receivables, letters of protection, revenue for patients other
than the plaintiff, as well as the software used—was not the type of discovery proper in
challenging an expert under those circumstances, citing See Nat’l Lloyds Ins. Co., 2014
WL 5785871. The court further expressly quoted the following language in reaching its
decision: (“[W]e fail to see how [the insurance company’s] overpayment,
underpayment, or proper payment of the claims of unrelated third parties is probative
of its conduct with respect to [plaintiff’s] undervaluation claims at issue in this case.”).

VI. Practice Pointers:

Late Counteraffidavits: If the defendant serves a late counteraffidavit in violation

of the 30-day rule or 14-day rule before the commencement of evidence, one has a
tactical decision to make on whether to file an objection or motion to strike or to lay
low. If the defendant does not move for leave and if you don’t move to strike or file an
immediate objection, you are subject to the judge granting a defendant’s motion for
leave and then you are stuck with no 18.001 affidavit proving up your medical proof on
the eve of trial.

Depositions of Counteraffidavits: If you receive a timely counteraffidavit, you can

request the deposition of the defendant’s counteraffidavit affiant – which will drive up
the costs for the defendant and there are no privileges between the defense attorney
and the counteraffidavit witness, even if the defendant asserts the witness is purely
consulting. See In re: Mendez, 234 S.W.3d 105 (Tex. App.—El Paso 2007, no pet.).
Whether to seek the deposition of this kind of witness does have some risk of curing the
affiant’s methodology presented in the counter affidavit, or alternatively file your
motion to strike, get a ruling, then decide.

Nonmedical Counteraffidavits: 18.001(f) allows the counteraffidavit on either the

reasonableness of the bill/charges or the necessity of the bill/charges related to the
injury at issue. The insurance industry has been using non-medical persons to file

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counteraffidavits. Many defense attorneys use a broad form affidavits and lump
together the reasonableness of the bill/charges AND the necessity of the treatment with
a nonmedical counteraffidavit which would be ripe to properly challenge. However, the
use of a nonmedical counteraffidavit on the reasonableness of the charges may be
proper depending on the qualifications of the affiant. Look closely to the affidavit and
the affiant, use of a nonmedical counteraffidavit on necessity of the medical treatment
is also ripe for a timely challenge.

Report is Not Incorporated into the Counteraffidavit: When served with a

counteraffidavit with an attached report from an expert, if the counteraffidavit does not
incorporate by reference the report into the affidavit, the courteraffidavit does not meet
the requirements of 18.001(f) and is subject to a proper and timely objection. See Posada
v. Romero, 2007 WL 1228668 (Tex. App.—Ft. Worth April 26, 2007, not pet.) (mem. op.),
holding, in part, that “when a document is incorporated into an affidavit, the document
is treated as if it were written in the affidavit”.

File and Serve Your 18.001 With Your Petition or Soon Thereafter: There’s an
opportunity to catch your opposing counsel off guard by serving the 18.001 affidavit
with the petition or soon thereafter, before discovery gets started, and get the 30 day
clock started running before opposing counsel realizes what has happened.

What Happens If the Defendant Fails to Meet the 30 Day Deadline?

Leave of Court: As soon as the defense attorney catches the mistake, they will request
leave of court to serve controverting affidavits. Courts have broad discretion to grant
leave to controvert outside of the 30-day deadline under 18.001(e). Good cause is not
mentioned in the statute. The longer the defendant lets time pass, the better grounds
you have to resist this issue.

If the Court Denies Leave, Determine Whether the Defendant Will Be Able to
Contest at Trial Anyway: Texas appellate courts have varying and conflicting opinions
on whether an opposing party may challenge reasonableness and necessity when the
party failed to serve controverting affidavits. Depending on which court you are in, the
defendant might be able to challenge reasonableness and necessity at trial even though
the defendant missed the deadline to controvert or the defendant’s controverting
affidavits are stricken.

Defendant Fails to File a Timely Counteraffidavit: The U.S. District Court for the
Northern District of Texas in Rahimi v. United States, reviewed 18.001 case law in Texas
as part of an Erie analysis and summed up the situation well: “...those courts which have
described the [18.001] provision as an evidentiary rule have generally held that a
defendant who fails to properly file a responsive counteraffidavit is precluded from

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presenting any evidence contesting the reasonableness and necessity of the expenses...
while other courts have permitted the presentation of controverting evidence, despite
the absence of a filed counteraffidavit.” Rahimi v. United States, 474 F. Supp. 2d 825,
828 (N.D. Tex. 2006).

In Texas, the Courts of Appeals for the 1st, 2nd, 6th, 9th, 11th, and 14th Districts
expressly forbid challenging reasonableness and necessity without a proper
controverting affidavit. These appellate courts have been clear that if no controverting
affidavit is filed, the other party may not controvert the claim. At least one court clarified
that allowing challenges to reasonableness and necessity in the absence of a
controverting affidavit would render the statute useless. See Hong v. Bennett, 209
S.W.3d 795, 800–01 (Tex. App.—Fort Worth Nov.22, 2006, no pet.); Nye v. Buntin, No.
03–05–00214–CV, 2006 WL 2309051, at *4 n. 1 (Tex. App.—Austin Aug.11, 2006, no
pet.); Castillo v. American Garment Finishers Corp., 965 S.W.2d 646, 654 (Tex. App.—El
Paso 1998, no pet.); Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland
1995, no writ); Ellen v. Carr, No. A14–92–00292–CV, 1992 WL 347783, at * 3 (Tex.
App.—Houston [14th Dist.] Nov. 25, 1992, writ denied), Further, those courts which
have described the provision as an evidentiary rule have generally held that a defendant
who fails to properly file a responsive counteraffidavit is precluded from presenting any
evidence contesting the reasonableness and necessity of the expenses, see Hong, 2006
WL 3377579, at *3; Beauchamp, 901 S.W.2d at 749; Ellen, 1992 WL 347783, at * 3

In contrast, the Courts of Appeals for the 3rd, 4th, 5th, 7th, 12th, and 13th Districts seem
to allow challenges to reasonableness and necessity even in the absence of a
controverting affidavit. However, caution should be exercised even in these
jurisdictions. Mendoza v. Sandoval, No. 13–03–359–CV, 2005 WL 977579, at *2 (Tex.
App.—Corpus Christi Apr.28, 2005, no pet.); Walker v. Ricks, 101 S.W.3d 740, 747–48
(Tex. App.—Corpus Christi 2003, no pet.); Ozlat v. Priddy, No. 11–96–240–CV, 1997 WL
33798173, at *3 (Tex. App.—Eastland May 29, 1997, writ. denied); Barrajas v. VIA
Metropolitan Transit Authority, 945 S.W.2d 207, 209 (Tex. App.—San Antonio 1997, no
writ); City of El Paso v. Public Utility Comm’n of Texas, 916 S.W.2d 515, 524 (Tex. App.—
Austin 1995, writ dism’d by agreement). First, the opinions from these courts do not
distinguish whether the testimony and evidence allowed at trial in the absence of a
controverting affidavit were strictly for purposes of challenging causation, or
reasonableness/necessity, or both. However, a recent opinion from the 5th Court of
Appeals sheds some light on what is permissible in these Districts. Specifically, in the
Ten Hagen Excavating case, 503 S.W.3d 463 (Tex. App.—Dallas 2016, pet. denied), the
5th Court of Appeals clarified that the failure to file timely and proper controverting
affidavits will preclude a party from offering expert testimony at trial challenging the
reasonableness and necessity of services, however, the absence of a controverting
affidavit will not preclude cross-examination of the plaintiff, introduction of medical
records, or arguments challenging reasonableness and necessity during opening and
closing statements. Second, several of the opinions from these Districts addressed

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purported 18.001 affidavits that used the phrase “reasonable and customary” rather
than “reasonable and necessary,” and under such circumstances the courts found that
a controverting party is not barred from challenging reasonableness and necessity at
trial even in the absence of a proper controverting affidavit. While other courts have
permitted the presentation of controverting evidence, despite the absence of a filed
counteraffidavit, see Owens v. Perez ex rel. San Juana Morin, 158 S.W.3d 96, 110 (Tex.
App.—Corpus Christi 2005, no pet.); Grove v. Overby, No. 03–03–00700–CV, 2004 WL
1686326, at *6 (Tex. App.—Austin July 29, 2004, no pet.).

VII. Final Comment

In re: North Cypress Medical Center Operating Co., Ltd., --- S.W.3d ---, 2018 WL
1974376 (Tex. Apr. 27, 2018) – This is a post-settlement dispute between the former
patient and the hospital on the reasonable and regular rate for hospital expenses, not a
CPRC 18.001 medical affidavit or 41.0105 paid or incurred issue. The patient disputed
the chargemaster price on the medicals, as under Chapter 55, Hospital Lien statute
states, the lien does not exceed the “reasonable and regular rate” for hospital services,
the hospital counter sued for suit on sworn account. Plaintiff/patient sought discovery
of certain managed care contracts, hospital asserted this discovery is irrelevant, trial
court overruled the hospital’s objections, 14th COA denied the Writ of Mandamus,
SCOTX opined in part that managed care contracts/reimbursement rates that reflect
with the hospital normally accepts as payment is relevant and discoverable. Defendants
will likely claim that the Texas Supreme Court’s recent opinion entitles them to their
requested discovery in the underlying personal injury cases. However, that opinion—to
which Justice Hecht, Justice Green, and Justice Guzman dissented—should be limited to
its narrow context of post settlement disputed by the hospital and the patient/plaintiff
or individual carrier and should not be read as an open invitation to limitless third-
party discovery based on nothing more than vague allegations of marginal relevance.

Interesting note; the other out-of-state cases relied on by the Texas Supreme Court
in North Cypress all involve disputes between hospitals and patients or hospitals and
insurance providers. See Children’s Hosp. Cent. California v. Blue Cross of California,
226 Cal. App. 4th 1260, 172 Cal. Rptr. 3d 861 (Cal. Ct. App. 2014) (involving dispute
between hospital and health care service plan for breach of implied-in-fact contract to
reimburse for the reasonable value of the post-stabilization emergency medical services
rendered to Medi-Cal beneficiaries); Bowden v. The Med. Ctr., Inc., 773 S.E.2d 692 (Ga.
2015) (involving suit between hospital and uninsured patient); Colomar v. Mercy Hosp.,
Inc., 461 F. Supp. 2d 1265 (S.D. Fla. 2006) (involving putative class action brought on
behalf of uninsured patients against a hospital); Temple Univ. Hosp., Inc. v. Healthcare
Mgmt. Alternatives, Inc., 832 A.2d 501 (Pa. Super. Ct. 2003) (involving litigations
between hospital and managed care company concerning an agreement to provide
services to certain Medicaid recipients).

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Likewise, a survey of recent cases reported in Texas concerning disputes arising out of
the hospital lien statute are the same as above; namely disputes between hospitals and
patients or hospitals and insurance providers: See McAllen Hospitals, LP v. Gomez, 2013
WL 784688 (Tex. App.—Corpus Christi 2013, no writ)(expert report not required under
Chapter 74, as a healthcare liability act claim, because no claim for mental anguish
sought under fraudulent lien act or DTPA); McAllen Hospitals, LP v. State Farm, 433
S.W.3d 535 (Tex. 2014)(hospital sued insurance carrier post-personal injury settlement
for failure satisfy and obtain a release of the hospital lien notwithstanding hospital was
named as a co-payee on the settlement check); Daughters of Charity v. Linnstaedter,
226 S.W.3d 409 (Tex.2007)(hospital’s lien claim failed for amounts in excess what
hospital received as payment from the workers’ compensation carrier, as payment
under the Texas Workers’ Compensation act deemed “fair and reasonable rates” as a
matter of law, no hospital lien violated the Labor Code for claim in excess of those
amounts), East Tex. Med. Ctr. v. Hernandez, No. 12-17-00333-CV, 2018 WL 2440508
(Tex. App.—Tyler 2018, pet. denied)(dispute under the hospital lien statute does not
implicate Chapter 27, CPRC, Anti-SLAPP), Allstate Indem. Co. v. Memorial Hermann
Health Systems, 437 S.W.3d 570 (Tex. App.—Houston [14th Dist.] 2014, no
pet.)(insurance company had standing to contest the reasonableness of the hospital
charges under the hospital lien statute); Mem’l Hermann Hosp. Sys. v. Progressive Cty
Mut. Ins. Co., 355 S.W.3d 123 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)(hospital
perfected hospital lien upon recording 30 minutes before delivery of settlement
proceeds, although clerk had yet to index the lien); Speegle v. Harris Methodist Health
Sys., 303 S.W.3d 32 (Tex. App.—Ft. Worth 2009, pet. denied)(hospital had right to file
and assert hospital lien from Medicare recipient). None of these Texas cases are related
to CPRC 18.001 or CPRC 41.0105, or during the underlying personal injury case.

TO HELP TTLA MEMBERS NAVIGATE THIS NEW TERRAIN, TTLA PRESIDENT

GLENN W. CUNNINGHAM APPOINTED A TASK FORCE TO DEVELOP TEMPLATE
RESPONSES TO REQUESTS AND MOTIONS RELATED TO THE NORTH
CYPRESS DECISION. THOSE DOCUMENTS INCLUDE A PLAINTIFF’S TEMPLATE
RESPONSE TO DISCOVERY AND A MEDICAL PROVIDER TEMPLATE RESPONSE TO
DISCOVERY AND CAN BE ACCESSED AT THE TTLA WEBSITE UNDER THE
MEMBERSHIP TAB, WITHIN THE MEMBER RESOURCES AT IN RE NORTH CYPRESS
RESOURCES:HTTPS://WWW.TTLA.COM/INDEX.CFM?PG=NORTHCYPRESS
ADDITIONALLY, THE IN RE NORTH CYPRESS TASK FORCE HAS CONDUCTED A
WEBINAR TO EDUCATE TTLA MEMBERS ABOUT THE NORTH CYPRESS DECISION
AND HOW IT IS AFFECTING PENDING CASES. THE WEBINAR ALSO INCLUDES A
TUTORIAL ON HOW TO USE THE TEMPLATE RESPONSES DEVELOPED BY THE
TASK FORCE. THIS WEBINAR IS OFFERED EXCLUSIVELY TO TTLA MEMBERS AND
IS AVAILABLE ON-DEMAND.

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