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Tort reform lobbyists succeeded in passing aggressive new deadlines for medical malpractice plaintiffs seeking an award of damages for past medical bills Contact Now

New Texas law changes requirements for billing record affidavits, will place some plaintiffs at risk

Tort reform lobbyists succeeded in passing aggressive new deadlines for medical malpractice plaintiffs seeking an award of damages for past medical bills

House Bill 1693 passed both houses of the Texas legislature during this year’s session and was signed by the governor with little fanfare. When it becomes effective, though, it will dramatically change trial practice for medical billing affidavits.

It’s bad bad news for patients and families injured by poor, substandard healthcare. Some of them will be at risk for being unable to recover damages for past medical bills caused by medical negligence.

Now more than ever, it’s important to immediately hire a top-rated, experienced Houston, Texas medical malpractice attorney. Potential plaintiffs who take a “wait and see” approach and delay hiring a lawyer until shortly before the general two-year statute of limitations may not have enough time to gather affidavit evidence for past medical bills under the new law.

I’ll explain why. In virtually every personal injury or medical malpractice lawsuit, plaintiffs take advantage of Texas Civil Practice & Remedies Code Section 18.001, which allows proving-up the reasonableness and necessity of past medical expenses by affidavit, rather than calling a live witness.

Under the pre-House Bill 1693 version of statute, a party “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.”

The extremist group Texans for Lawsuit Reform (TLR) supported House Bill 1693 to reduce what it contends was “unfairness arising from timing in the use of affidavits to prove the reasonableness of medical bills in a lawsuit.” Just like TLR hoped for, the most significant change in the new law focuses on the deadline when plaintiffs must file medical billing affidavits.

Beginning on the effective date of September 1, 2019, the new Section 18.001 billing record affidavit deadline is pushed up toward the beginning of the case, specifically the earlier of: (1) 90 days after the date the defendant files an answer; (2) the date the offering party must designate any expert witness under a court order; or (3) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure.

Other key provisions of this amended section include:

• The affidavit is not evidence of and does not support a finding of causation.

• The affidavit does not need to be filed with the clerk of the court, but the party offering the affidavit in evidence or the party’s attorney must file notice that a copy of the affidavit was served.

•  The deadlines for controverting  affidavits (filed by defendants) are more generous. They must be filed  by the earlier of: (1) 120 days after the date the defendant files its answer; (2) the date the controverting  party must designate any expert witness under a court order; or (3) the date the controverting  party must designate any expert witness as required by the Texas Rules of Civil Procedure.

• If medical services are provided for the first time after the date the defendant files an answer, the deadline for the party to offer a billing records affidavit is the earlier of its expert designation deadline under a court order or the Texas Rules of Civil Procedure.  The deadline for controverting affidavits in this situation is  the earlier of: (1)  30 days after service of the billing affidavit; (2) the date the controverting  party must designate any expert witness under a court order; or (3) the date the controverting  party must designate any expert witness as required by the Texas Rules of Civil Procedure.

The safest course for injured patients and their families is to contact a competent Texas medical malpractice attorney quickly. This allows enough time for the legal team to navigate the various tort reform hurdles placed by the Texas legislature. When it comes to medical malpractice cases, direct experience matters!

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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