Summary
In Rountree, the trial court admitted into evidence at trial Section 18.001 affidavits from five of the claimant's medical providers and the counteraffidavit provided by the defendant's expert, Dr. West.
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No. 05-16-00512-CV
06-26-2017
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
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Brown
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. The amounts charged by these providers totaled $27,210, ranging from charges of $645 for Action Diagnostic to $19,200 for the Ambulatory Surgery Center.
The initial reporter's record in this case incorrectly reflected that Rountree had no objection to the affidavits. Upon Rountree's motion to correct the reporter's record, we ordered the trial court to conduct a hearing on the accuracy of the reporter's record and abated the appeal. The trial court found that the record was not accurate, and the court reporter filed a corrected reporter's record.
Dr. Mishra, a physician board-certified in anesthesiology and in pain management, diagnosed Cavazos with occipital neuralgia, a shooting or radiating pain from the neck area to the posterior part of the head. He identified the records related to his treatment of Cavazos and testified about the treatment methods. Dr. Mishra was asked about the necessity and expenses for Cavazos's treatment from the various providers. Also, Dr. Mishra had reviewed the counteraffidavit and provided testimony in rebuttal to many of Dr. West's statements. For example, Dr. Mishra disagreed with Dr. West's claim that Cavazos appeared to have experienced only mild discomfort as a result of the accident.
Dr. West, board-certified in physical medicine and rehabilitation, testified for Rountree. He did not treat Cavazos; but he had reviewed her records. Dr. West disagreed with Dr. Mishra's diagnosis of occipital neuralgia. He also testified that a regimen of nonsteroidal anti-inflammatory medications or anti-corticosteroids would have been a better course of treatment for Cavazos. Dr. West also testified that the occipital nerve block was not required to be performed at a surgery center and could have been performed in a doctor's office. According to Dr. West, the $19,200 for the occipital nerve block was an extraordinarily high fee for a very simple procedure. In Dr. West's opinion, medications might have resolved Cavazos's pain.
The jury returned a verdict in favor of Cavazos and awarded her total damages of $41,500, which included $35,000 for past medical expenses. The trial court rendered judgment in accordance with the verdict. Rountree moved for judgment notwithstanding the verdict or alternatively for a new trial and remittitur, arguing that there was insufficient evidence to support the award for past medical expenses. The trial court denied Rountree's motion, and this appeal followed.
DISCUSSION
In a single issue in this appeal, Rountree contends that the evidence is legally insufficient to support the award of past medical expenses because there was no competent evidence to prove that the amount charged by five medical providers was reasonable. Rountree asserts that because she served the counteraffidavit from Dr. West, the billing records affidavits from five of the providers should have been excluded from evidence at trial. Without that improperly admitted evidence, Rountree contends, the evidence is insufficient to show past medical expenses of $35,000. Rountree asserts that Dr. Mishra did not establish that he was qualified to opine on whether the amounts the other providers charged were reasonable and also that he did not give his opinion as to whether all the charges were reasonable. Consistent with her position at trial, Rountree does not contest that Dr. Mishra was qualified to opine on the necessity of all of Cavazos's treatments.
Thus, subsumed within Rountree's complaint about the legal sufficiency of the evidence is her complaint that five billing records affidavits were erroneously admitted into evidence. To this point, Cavazos responds that the particular billing records affidavits were properly admitted because Dr. West's counteraffidavit was insufficient to controvert her initial affidavits. Cavazos argues that Dr. West did not establish he was qualified to offer his opinions and provided only conclusory allegations and did not explain the basis for his conclusions. It is unclear why the trial court refused to strike Dr. West's counteraffidavit, yet admitted five of the billing records affidavits into evidence over Rountree's objection. See Liang, 2016 WL 7163841, at *2 (by filing counteraffidavit, defendant can prevent plaintiff's affidavits from being used as evidence). Perhaps the trial judge changed his mind about the merits of the counteraffidavit. Or perhaps the trial court admitted Cavazos's affidavits because it concluded Dr. West controverted only the necessity for the medical treatment, not the reasonableness of the charges. See Moreno v. Ingram, 454 S.W.3d 186, 188 (Tex. App.—Dallas 2014, no pet.) (where counteraffidavit controverted necessity of treatment only, trial court admitted plaintiff's affidavits into evidence to show reasonableness of charges, but all references to necessity were redacted from them). Yet we must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Liang, 2016 WL 7163841, at *2. We agree with Cavazos that the counteraffidavit was insufficient to controvert the claim in her initial affidavits that the amounts charged for the medical services were reasonable at the time and place that the services were provided.
For purposes of this opinion, we will assume without deciding that Dr. West was qualified to opine on Cavazos's treatment. Dr. West used the terms "reasonable" and "unreasonable" in his counteraffidavit, but did so to refer to the treatment, not the billing for the treatment. For example, regarding both the physical capacity evaluation and drug screen, Dr. West stated that no justification was given for these services, so they were "unreasonable and unnecessary." From his affidavit as a whole, it is clear Dr. West is not opining that the amounts charged for the services in dispute were not reasonable at the time and place provided. Rather, his position is that that all services beyond the initial trip to the ER were unreasonable and unnecessary because Cavazos complained of only "mild discomfort" at the ER. He stated, "[f]rom the pain levels given, it does not seem that she had significant enough pain to require treatment." Even assuming Cavazos had "moderately severe discomfort," according to Dr. West, Cavazos should have started on a course of nonsteroidal anti-inflammatory medications and/or cortical steroids and she might well have required no further treatment. 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 of the amounts charged for any service and why the amounts charged were unreasonable for the time and place the service was provided. This statement is a bare conclusion without any factual substantiation and is insufficient to controvert the reasonableness of the medical bills in question. See City of Laredo v. Limon, No. 04-12-00616-CV, 2013 WL 5948129, at *7 (Tex. App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.) (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 professionals' bills). The arguments of Rountree's counsel in the trial court further support this reading of the counteraffidavit. More than once, counsel made statements such as, "[Dr. West] never talks about the billing. He talks about the reasonableness and necessity of treatment." Cf. Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.—Dallas 2001, pet. denied) (noting, in concluding that counteraffidavit did not show doctor was qualified to contravene all matters in plaintiff's affidavits, that counteraffidavit did not address whether charges for plaintiff's medical services were reasonable in terms of cost).
Citing cases from other courts of appeals, Rountree maintains that other courts have concluded that opinions similar to those given by Dr. West satisfy section 18.001(f). We find these cases to be distinguishable. TREIMee Corp. v. Garcia, No. 01-11-00971-CV, 2013 WL 4680379, at *6-9 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, pet. denied) (mem. op.) (concerns whether doctor was qualified to testify at trial as expert on reasonableness and necessity of plaintiff's treatment); Posada v. Romero, No. 2-06-192-CV, 2007 WL 1228668, at *2-4 (Tex. App.—Fort Worth April 26, 2007, no pet.) (mem. op.) (counteraffidavit gave several examples of excessive charges; for example, "The $475 charge by [doctor] on 8/14/03 for a detailed exam and NARR-Complex is excessive by approximately $225."); Hong, 209 S.W.3d at 803-04 (counteraffidavit is similar to Dr. West's in that chiropractor who made counteraffidavit was of opinion that none of services were reasonable and necessary because plaintiff was not seriously injured; but question before court of appeals was whether chiropractor was qualified to controvert reasonableness and necessity of medical doctor's, pharmacist's, and radiologist's services); Ozlat v. Priddy, No. 11-96-240-CV, 1997 WL 33798173, at *3-4 (Tex. App.—Eastland May 29, 1997, writ denied) (not designated for publication) (counteraffidavit stated that, based on medical records and billing, charges for medical care relating to accident do not appear reasonable). We conclude the counteraffidavit did not give reasonable notice of the basis on which Rountree intended at trial to controvert the claim in the initial affidavits that the amount charged was reasonable for the time and place. Accordingly, the trial court did not abuse its discretion in admitting Cavazos's medical billing affidavits to establish the reasonableness of the fees charged. See Liang, 2016 WL 7163841, at *2.
The billing records affidavits all stated that the amount charged for the medical services was reasonable at the time and place the service was provided. They therefore constituted sufficient evidence that the amount of past medical expenses awarded by the jury was reasonable. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b); Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.) (when appellant challenges legal sufficiency of adverse finding on which she did not have burden of proof, if more than scintilla of evidence exists to support finding, legal sufficiency challenge fails). We overrule Rountree's sole issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 160512F.P05
JUDGMENT
On Appeal from the County Court at Law No. 4, Collin County, Texas
Trial Court Cause No. 004-00588-2015.
Opinion delivered by Justice Brown, Justices Francis and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee JENNIFER CAVAZOS recover her costs of this appeal and the full amount of the trial court's judgment from appellant SKYLER ROUNTREE and from Employers Insurance Company of Wausau as surety on appellant's supersedeas bond. Judgment entered this 26th day of June, 2017.