In Liang v. Edwards, a Texas appellate court considered a car accident case in which the jury found for the plaintiff, awarding her $5,000 for her past pain and suffering and more than $20,000 for her past medical bills. The case arose when the defendant hit the plaintiff’s car. She was driving within the speed limit but admitted the plaintiff did nothing wrong, and the officer found she was at fault.
The plaintiff’s husband drove her home, and she slept for hours. She went to the ER after she woke up and had suffered a neck sprain and concussion. She followed up with her doctor, and two days later, she visited a chiropractor and a physical therapist. She received physical therapy as well as chiropractic adjustments and other therapies from the doctor 2-3 times a week for 4-6 weeks.
Once she was finished with that, she went to a pain management specialist, who gave her an epidural steroid injection for her pain and later gave her a second one. She testified that she suffered through occasional pain after that and continued with the therapy because she was experiencing pain.
The plaintiff sued the defendant and filed billing records affidavits under section 18.001 of the Texas Civil Practice and Remedies Code. The defendant filed a counter affidavit, contesting whether these past treatments were reasonable. The defendant’s expert provided an opinion that the epidural steroid injections and chiropractic visits (beyond six of them) were unreasonable, since there was no testing confirming that the plaintiff had suffered from radiculopathy. Nonetheless, the plaintiff’s billing record affidavits were admitted without the plaintiff providing expert testimony that the medical care was reasonable.
The parties presented parts of the defendant’s expert deposition testimony at trial, and at the end of the trial, the jury found for the plaintiff, awarding the amount represented in the billing records affidavits. The defendant filed a motion for judgment notwithstanding the verdict and a motion for a new trial, arguing that it was an abuse of discretion for the judge to admit the billing records affidavits, since she’d filed a counter affidavit. The motions were denied, and the defendant appealed.
In her first issue, Liang contended the trial court abused its discretion by admitting some of Edwards’ billing records affidavits because she timely filed a counter affidavit, which meant that the plaintiff needed to get an expert to testify that her expenses were necessary and reasonable. The plaintiff responded that the counter affidavit wasn’t timely and wasn’t made by somebody qualified to give those opinions.
The appellate court explained that claims for past medical expenses in Texas must be supported by evidence that the defendant’s negligence caused the injuries and that the medical treatment was necessary and reasonable. Plaintiffs can present evidence about the reasonableness and necessity of past medical expenses by submitting expert testimony or affidavits from the plaintiff’s medical provider.
A jury isn’t required to award a plaintiff the amount of damages the affidavit states, but if it does, the affidavit is evidence to support reasonableness and necessity. However, an opposing party can submit a counter affidavit to prevent the initial affidavit from being used as evidence and require the party to submit expert testimony on the issue of medical bills. The appellate court found that the counter affidavit met the requirements of section 18.001 and that it was an abuse of discretion for the trial judge to admit the initial affidavits instead of requiring the plaintiff to present expert testimony. The judgment was reversed and remanded for a new trial.
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