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Rountree v. Cavazos

Court of Appeals of Texas, Fifth District, Dallas

June 26, 2017

SKYLER ROUNTREE, Appellant
v.
JENNIFER CAVAZOS, Appellee

         On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-00588-2015

          Before Justices Francis, Brown, and Schenck

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         Jennifer Cavazos sued Skyler Rountree for negligence after the two were involved in a car accident. After a jury trial, Rountree appeals a judgment in favor of Cavazos. In a single issue, Rountree contends the evidence is legally insufficient to support the jury's award for past medical expenses because there is no competent evidence that the amounts charged for certain services were reasonable. We affirm the trial court's judgment.

         Background

         Resolution of Rountree's issue involves section 18.001 of the civil practice and remedies code. In a personal injury case, a claim for past medical expenses must be supported by evidence that the medical treatment was necessary and the charges for that treatment were reasonable. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 490-91 (Tex. App.- Dallas 2016, pet. denied). A plaintiff can present evidence concerning the reasonableness and necessity of past medical expenses either through expert testimony or through an affidavit from her medical provider made pursuant to section 18.001. Id. at 491. Section 18.001(b) provides:

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 a judge or jury that the amount charged was reasonable or that the service was necessary.

Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (West 2015). A medical provider's section 18.001 affidavit can save a plaintiff the expense of having to hire an expert to testify that her medical expenses were reasonable and necessary. Ten Hagen, 503 S.W.3d at 491.

         If an opposing party intends to controvert an initial section 18.001 affidavit, the opposing party must serve a counteraffidavit. Id. at 492. A 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. Tex. Civ. Prac. & Rem. Code Ann. § 18.001(f). Further, it 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. Id. By filing a counteraffidavit, the defendant can prevent the plaintiff's affidavits regarding reasonableness and necessity from being used as evidence and instead require the plaintiff to prove reasonableness and necessity by expert testimony at trial. Liang v. Edwards, No. 05-15-01038-CV, 2016 WL 7163841, at *2 (Tex. App.-Dallas Nov. 23, 2016, no pet.) (mem. op.); Hong v. Bennett, 209 S.W.3d 795, 801 (Tex. App.-Fort Worth 2006, no pet.). Because section 18.001 is an evidentiary statute, a trial court's ruling admitting or excluding section 18.001 affidavits is reviewed under an abuse of discretion standard. Liang, 2016 WL 7163841, at *2 . We must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Id.

         Several months before trial, Cavazos served notice of her intent to use billing and medical records affidavits from the custodian of records for eight different medical providers at trial. The billing records affidavits provided the amount charged for services and stated that the services provided to Cavazos were necessary and that the amount charged was reasonable at the time and place the services were provided. In response, Rountree filed a counteraffidavit from Don West, M.D. Cavazos moved to strike the counteraffidavit, asserting that it was insufficient because it did not give reasonable notice of the basis on which Rountree intended to controvert Cavazos's affidavits and because Dr. West was not qualified to opine on all of Cavazos's medical treatment. About two months before trial, the court held a hearing on the motion to strike. After a brief discussion, before any ruling on the motion to strike, the proceedings continued off the record. The court later signed an order denying Cavazos's motion.

         At trial, before testimony began, the court admitted into evidence without objection Cavazos's medical records from all eight providers and billing records affidavits from three of those providers, Baylor Medical Center McKinney, McKinney Emergency Physicians, and Texas Pain Relief Group. Rountree did not and does not object to admission of these three billing records, which include bills for treatment in the emergency room immediately following the accident and for treatment by Dr. Rahul Mishra, who testified by video deposition at trial.

         One of Cavazos's attorneys told the trial court he wanted to admit the remaining billing records affidavits into evidence. Cavazos's other attorney asserted that Dr. West did not controvert the reasonableness of the charges for any facility. Rountree's attorney responded, "Well, he's controverting all of the treatment, so there shouldn't be any charges. He's not saying that chiropractic was $200 and it should have been $190." Rountree did not oppose Dr. Mishra testifying about the necessity of Cavazos's treatment, stating it was within his expertise. Rountree did oppose Dr. Mishra's talking about the charges or billing and argued he was not qualified to testify about the reasonableness of bills from other medical providers. Defense counsel acknowledged that his expert, Dr. West, did not talk about the billing in his affidavit. Cavazos's counsel questioned why her client needed an expert to say the billing was reasonable when Dr. West never said the billing was unreasonable. After more discussion, the trial judge told Cavazos's counsel, "I believe you have to call your - - at least your medical doctor to refute the counteraffidavit."

         Cavazos then testified about the circumstances of the accident and the medical treatment that followed. Immediately after the accident, Cavazos was treated in the ER. Cavazos initially had pain in her hip and pain later surfaced in her neck, back, and shoulder. An ER doctor wrote her a prescription and told her to follow up with her doctor in a week to ten days. Cavazos testified that two or three days later she followed up with a physician. She eventually went to McKinney Injury Rehab, a chiropractic clinic, for treatment. At the chiropractor's referral, Action Diagnostic performed a physical capacity evaluation. Her chiropractor later referred her to Dr. Mishra at Texas Pain Relief Group. Dr. Mishra ordered a drug screen for Cavazos, which was performed by Choice Laboratory Services. Dr. Mishra subsequently treated Cavazos with injections. Cavazos had a nerve block in January 2015, and a trigger point injection in February 2015. Cavazos had injections at the Ambulatory Surgery Center, and Physician Partners of America provided anesthesia.

         Dr. Mishra testified the next day by video deposition. During his testimony, over Rountree's objection, the trial court admitted into evidence the billing records affidavits and accompanying bills from the remaining medical providers, Ambulatory Surgery Center, Action Diagnostic, Physician Partners of America, Choice Laboratory Services, and McKinney Injury Rehab.[1] The amounts charged by these providers ...


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