Section 41.0105 of the Texas Civil Practice and Remedies Code provides that recovery of medical expenses is limited to amounts “actually paid or incurred . . . .” Tex. Civ. Prac. & Rem. Code Ann. § 41.0105 (Vernon 2008). Plaintiffs’ attorneys argued this meant that plaintiffs are entitled to recover all amounts paid and all amounts incurred, including amounts adjusted or written off by a health care provider. Defense attorneys argued that plaintiffs should only recover amounts actually paid, and amounts incurred and later written off or adjusted should not be recoverable damages because doing so provides plaintiffs with a windfall.
Recently, the Supreme Court determined that “paid or incurred” means plaintiffs are entitled to those medical expenses that are recoverable—that is, expenses actually paid or actually due. Haygood v. De Escabedo, —S.W.3d—-, 2011 WL 2601363 at *3 (Tex. 2011). That’s right: “paid or incurred” really means “paid or to be paid.” The Court also held that “only evidence of recoverable medical expenses is admissible at trial.” Haygood, 2011 WL 2601363 at *6. This particular holding raises an issue with the frequently used medical affidavits provided for in section 18.001 of the Texas Civil Practice and Remedies Code. That section provides that an affidavit stating that the amount a person was charged was reasonable is sufficient evidence to support a finding of fact. Tex. Civ. Prac. & Rem. Code § 18.001(b). Unfortunately, what a person is charged means what a person has incurred, and “incurred” now means “paid or to be paid,” and not “paid or incurred.” (Although the Court discussed the 18.001 affidavits and determined the section did not dictate another outcome on the interpretation of “paid or incurred,” it did not address how practitioners are to deal with the now inconsistent language.)
The long term solution for this problem is for the Texas Legislature to amend sections 18.001 and 18.002 of the Civil Practice and Remedies Code. In the meantime, practitioners should make reasonable modifications to the language in their 18.001 affidavits by eliminating the word “charged” and replacing it with “paid or incurred,” “paid or to be paid,” or “recoverable,” as appropriate. More importantly, any dollar amounts included in practitioners’ affidavits must conform with the holding of Haygood. Listing an amount that has been written off or adjusted will make the affidavit partially or wholly inadmissible, a problem no attorney wants to encounter on the day of trial.
