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New law in Texas makes it more difficult to recover for past medical expenses in medical malpractice cases

Once a lawsuit is filed, there's no time to waste in assembling and serving medical billing records

In many Texas medical malpractice cases, one of the types of economic damages that plaintiffs want to recover in a lawsuit is their past medical bills. In many situations, these can add up to hundreds of thousands of dollars.

It’s important to understand, from the get-go, what’s recoverable and what’s not. Plus, there’s a new law that became effective on January 1, 2020, that every medical malpractice plaintiff in Texas should know about.

What past medical bills are recoverable in court?

Medical bills for reasonable and necessary care and treatment that a plaintiff received because of a doctor, hospital, or other health care provider’s negligence can be recovered in a medical malpractice lawsuit.

When we meet with prospective or new clients at Painter Law Firm to talk about past medical bills, it’s common to hear an astronomical number. While they’re certainly being truthful about what the hospital and doctors actually charged, that’s not the number that matters in court.

Under guidelines invented by the Texas Supreme Court in its opinion Haygood v. De Escobedo, 356 S.W.3d 390 (Tex. 2011), a plaintiff’s recovery for medical bills is limited to:

• The amount that was actually paid by the plaintiff’s insurance company, Medicare, or Medicaid, or that the plaintiff paid out of pocket. If the original bill was $200,000, but the insurance company paid $50,000, the co-pay was $500, and the hospital wrote off the remaining balance, the plaintiff could only claim $50,500 in the lawsuit.

• The amount that the plaintiff still legally owes. If a balance is written off, it can’t be collected.

How do you prove past medical bills in court?

To prove past medical bills, most plaintiffs’ attorneys have historically relied on a streamlined affidavit process allowed by Texas Civil Practice & Remedies Code Section 18.001. An affidavit under Section 18.001 that isn’t controverted by an opposing affidavit from the defendant, will support a jury finding that the past medical bills were reasonable and necessary. Proving reasonableness and necessity of the medical bills is necessary for a plaintiff to recover those damages.

In 2019, the process changed when the legislature passed, and the governor signed into law, a major anti-plaintiff amendment to Section 18.001. The amendment became effective on January 1, 2020. The significant new changes require, in most cases:

• The plaintiff must serve affidavits under Section 18.001 within 90 days of the defendant filing an answer in the lawsuit. This is a major change because the prior version of the statute allowed plaintiffs to serve affidavits up until 30 days before the evidence would be introduced at trial.

• If a plaintiff starts medical treatment with a doctor or hospital for the first time after a defendant files its answer, then the plaintiff has up until its expert designation deadline to serve Section 18.001 affidavits.

• If the plaintiff continues treatment after it has served a Section 18.001 affidavit, the plaintiff can serve supplemental affidavits up through the 60th day before trial.

• Defendants now have more liberal timeframes to file controverting (opposing) affidavits.

There are some take-aways for medical malpractice plaintiffs that I’d like to highlight.

First, plaintiffs need to cooperate with their attorneys to provide a comprehensive list of treaters related to the medical negligence. It takes time for hospitals and doctors to respond to billing records requests—sometimes an unreasonably long time. At Painter Law Firm, we prefer to get the billing records and affidavits ordered and underway before filing the lawsuit. That allows us to minimize the risk of these draconian new deadlines.

Second, it’s important to hire an experienced medical malpractice attorney who understands the new billing records affidavit law. This is essential to protecting a plaintiff’s ability to prove up damages the least costly and most efficient way, through Section 18.001 affidavits.

If a plaintiff’s deadline is missed, that means the added expense and uncertainty of bringing a live witness from each health care provider’s office to testify about the past medical bills. Without an affidavit or live trial witness, the damages for past medical bills are completely off the table.

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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