AFFIRM; Opinion Filed July 18, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00531-CV
TATIA ORTIZ, Appellant V. RAMU NELAPATLA, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-02383-2020
MEMORANDUM OPINION Before Justices Partida-Kipness, Smith, and Breedlove Opinion by Justice Smith Tatia Ortiz appeals the trial court’s judgment in this personal injury case
arising from an automobile collision. In three issues, Ortiz asserts the trial court
erred in sustaining appellee Ramu Nelapatla’s objections to the admission of medical
provider affidavits served by Ortiz pursuant to Texas Civil Practice and Remedies
Code section 18.001, counteraffidavits served by Nelapatla, and Nelapatla’s
supplemental disclosure responses designating the expert witnesses that provided
the counteraffidavits. Because the trial court did not abuse its discretion, we affirm
its judgment. Background
Ortiz sued Nelapatla, alleging that Nelapatla’s negligence caused an
automobile accident in which Ortiz suffered injuries. Ortiz timely served affidavits
made by the custodians of record for Addison Interventional Pain, LifeSciences
Imaging, and Synergy Sports Rehabilitation averring that she had incurred,
respectively, $2,210, $11,250, and $6,415 in reasonable and necessary medical
expenses because of the accident.
Nelapatla retained Rhonda R. Guitreau, a medical billing expert and practice
management consultant, and Edward Le Cara, D.C., a practicing chiropractor.
Nelapatla designated Guitreau as an expert on treatment costs and Le Cara as an
expert on Ortiz’s medical treatment and costs. Nelapatla timely served
counteraffidavits in which Guitreau opined that $1,475 of the LifeSciences charges
were not within the usual, customary, and reasonable variance for the geographical
area in which the services were rendered, and Le Cara opined that certain modalities
and procedures were not medically necessary or supported by medical records and
$3,465 of the Synergy Sport charges were not reasonable.
Ortiz’s trial exhibit list included the Addison Interventional Pain,
LifeSciences, and Synergy Sports affidavits. During a pretrial hearing, Nelapatla,
relying on the counteraffidavits, objected that the LifeSciences and Synergy Sports
affidavits were inadmissible under section 18.001 of the civil practice and remedies
–2– code and as hearsay. The trial court sustained Nelapatla’s objections. Ortiz then
moved to offer the counteraffidavits into evidence, noting that she also had
designated Guitreau and Le Cara as experts. Nelapatla objected to admission of the
counteraffidavits, and the trial court again sustained his objection.
During trial, Ortiz moved for the admission of her medical provider affidavits.
Again relying on the counteraffidavits, Nelapatla objected to the LifeSciences and
Synergy Sports affidavits, and the trial court sustained his objections. After the
parties rested, Ortiz made an offer of proof, marking the LifeSciences and Synergy
Sports affidavits, the counteraffidavits, and Ortiz’s supplemental disclosure
responses designating Guitreau and Le Cara as expert witnesses on her behalf. Ortiz
also marked Nelapatla’s supplemental disclosure responses designating Guitreau
and Le Cara as experts. Nelapatla’s counsel reurged his section 18.001 and hearsay
objections to admission of the documents and again, the trial court sustained the
objections.
The jury found Nelapatla negligent, awarding Ortiz $2,210 for past medical
expenses, and the trial court entered a final judgment on the jury’s verdict. Ortiz
filed a motion for new trial solely as to damages. The motion was overruled by
operation of law, and this appeal followed.
Standard of Review
We review a trial court’s decision to exclude evidence for an abuse of
discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
–3– 2001); see also Rountree v. Cavazos, No. 05-16-00512-CV, 2017 WL 2730422, at
*1 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) (“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.”). We must uphold the
trial court’s ruling if the record shows any legitimate basis for doing so. Rountree,
2017 WL 2730422, at *1.
Ortiz’s Section 18.001 Affidavits
In her first issue, Ortiz contends the trial court erred in sustaining Nelapatla’s
objections to the LifeSciences and Synergy Sports affidavits because the
counteraffidavits only partially controverted the necessity and reasonableness of
those providers’ charges. According to Ortiz, the trial court should have admitted
the affidavits into evidence and either (1) instructed the jury that it could award, at
most, an amount equal to the non-controverted charges or (2) performed a remittitur
if the jury awarded an amount exceeding the non-controverted charges.
Under Texas law, a plaintiff seeking to recover its past medical expenses must
prove that the expenses are reasonable and necessary. In re Allstate Indem. Co., 622
S.W.3d 870, 876 (Tex. 2021) (orig. proceeding). To do so, the plaintiff must present
expert testimony at trial or an uncontroverted affidavit complying with the
procedures outlined in section 18.001 of the civil practice and remedies code. In re
Chefs’ Produce of Hous., Inc., 667 S.W.3d 297, 301 (Tex. 2023) (orig. proceeding)
(per curiam); see TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b).
–4– Section 18.001, designed to “streamline proof of the reasonableness and
necessity of medical expenses,” is an evidentiary statute; it allows for the
admissibility by affidavit of evidence that would otherwise be inadmissible hearsay.
Allstate, 622 S.W.3d at 881 (quoting Haygood v. De Escabedo, 356 S.W.3d 390,
397 (Tex. 2011)); Rountree, 2017 WL 2730422, at *1. Section 18.001(b) provides
that
[u]nless 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 judge or jury that the amount charged was reasonable or that the service was necessary.
TEX. CIV. PRAC. & REM. CODE § 18.001(b). An uncontroverted affidavit is
sufficient, but not conclusive, evidence that medical expenses are reasonable and
necessary. Chefs’ Produce, 667 S.W.3d at 301 (citing Allstate, 622 S.W.3d at 881).
To controvert a section 18.001 affidavit, a defendant must timely serve the
plaintiff with a counteraffidavit that provides “reasonable notice of the basis on
which the [defendant] intends at trial to controvert the claim reflected by the initial
affidavit . . . .” TEX. CIV. PRAC. & REM. CODE § 18.001(f). To satisfy this
“reasonable notice” requirement, a counteraffidavit need only allow the plaintiff to
understand “the nature and basic issues in controversy and what testimony will be
relevant,” such that the plaintiff has “sufficient information to enable [it] to prepare
a defense or a response.” Chefs’ Produce, 667 S.W.3d at 302 (quoting Allstate, 622
–5– S.W.3d at 881). If a defendant serves a compliant counteraffidavit, the plaintiff may
not reach the jury on the reasonableness and necessity of her medical expenses
without expert testimony. See Allstate, 622 S.W.3d at 877.
Ortiz at no time challenged the sufficiency of Nelapatla’s counteraffidavits.
Instead, she asserted that the trial court should have admitted her partially
controverted affidavits.
We construe a statute to give effect to the Legislature’s intent. Gunn v.
McCoy, 554 S.W.3d 645, 672–73 (Tex. 2018) (citing Tex. Lottery Comm’n v. First
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)). In doing so, we rely on
the text’s plain meaning unless a different meaning is supplied by legislative
definition or apparent from context, or the plain meaning leads to absurd results. Id.;
see also Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012) (“[T]his
Court presumes the Legislature deliberately and purposefully selects words and
phrases it enacts, as well as deliberately and purposefully omits words and phrases
it does not enact.”); Allstate, 622 S.W.3d at 880 (construing section 18.001(f) and
concluding that nothing in its text “requires that an opinion expressed in a
counteraffidavit must meet the admissibility requirements for expert testimony”).
An affidavit is sufficient evidence to support a finding that the amount charged
was reasonable or that the service was necessary “[u]nless” a compliant
counteraffidavit is served. TEX. CIV. PRAC. & REM. CODE § 18.001(b). And, section
18.001 contemplates counteraffidavits that are “made by a person who is qualified
–6– . . . to testify in contravention of all or part of any of the matters contained in the
initial affidavit.” Id. § 18.001(f) (emphasis added). Therefore, to be compliant, a
counteraffidavit need not fully controvert a plaintiff’s affidavit. Nothing in the plain
language of section 18.001 suggests that a plaintiff is entitled to rely on a section
18.001 affidavit, in full or in part, as evidence at trial if the affidavit is only partially
controverted. Had the Legislature intended to authorize use of a partially
controverted affidavit as evidence at trial, it could have so provided. Instead, “[i]n
the face of a compliant counteraffidavit, the [plaintiff] may not reach the jury on the
reasonableness and necessity of her medical expenses without expert testimony.”
Chefs’ Produce, 667 S.W.3d at 301 (citing Allstate, 622 S.W.3d at 877). Based on
the plain meaning of section 18.001, we conclude the trial court did not abuse its
discretion in sustaining Nelapatla’s objections to admission of the LifeSciences and
Synergy Sports affidavits.
Citing Rountree, 2017 WL 2730422, the dissent concludes that the trial court
should have admitted uncontroverted portions of Ortiz’s section 18.001 affidavits
into evidence at trial. Respectfully, we disagree.
In Rountree, the plaintiff filed a number of billing record affidavits. The
defendant filed a counteraffidavit, which the plaintiff moved to strike. Id. at *2. The
trial court denied the motion. Id. At the outset of trial several of the plaintiff’s
affidavits were admitted into evidence without objection. Id. The plaintiff sought
to admit the remaining affidavits because the defendant’s expert had controverted
–7– only the necessity of the treatment and not the reasonableness of the plaintiff’s
medical charges. Id. The defendant objected, asserting that its expert had
controverted “all of the treatment.” Id. The trial court told the plaintiff that she
would need to call her medical doctor to refute the counteraffidavit. Id. Thereafter,
both the plaintiff’s expert and the defendant’s expert testified at trial. During the
testimony of the plaintiff’s expert, the trial court admitted the affidavits into
evidence. Id.
On appeal, this Court noted that it was unclear why the trial court had admitted
the plaintiff’s affidavits when it refused to strike the counteraffidavit. Id. at *3. The
Court stated that the trial court may have “changed his mind” or “perhaps . . .
concluded [the defendant’s expert] controverted only the necessity for the medical
treatment, not the reasonableness of the charges.”1 Id. In any event, the Court
determined that the counteraffidavit did not give reasonable notice of the basis on
which the defendant’s expert intended at trial to controvert the plaintiff’s claim that
the amount charged was reasonable. Id. at *4. And, because it is charged with
upholding a trial court’s evidentiary ruling if there is any legitimate basis in the
record for doing so, the Court concluded that the trial court had not abused its
discretion in admitting the plaintiff’s affidavits. Id. at *4.
1 The Court cited Moreno v. Ingram, 454 S.W.3d 186, 188 (Tex. App.—Dallas 2014, no pet.), as support for the possibility that the trial court admitted the affidavits because the counteraffidavit controverted only the necessity for medical treatment. In Moreno, however, the affidavits were admitted without objection after the references to the necessity of treatment were redacted, and the issue on appeal was whether the defense expert was qualified to testify as to the necessity of certain medical treatment. Id. –8– In this case, unlike Rountree, Nelapatla’s counteraffidavits specifically
controverted the reasonableness of Ortiz’s medical charges, and Ortiz did not
challenge the counteraffidavits. And, unlike Rountree, there was no expert
testimony at trial on the necessity of the medical services or the reasonableness of
the medical charges. Under these circumstances and based on the plain language of
section 18.001, we conclude that the trial court had a legitimate basis in the record
for excluding the affidavits and, therefore, did not abuse its discretion.
Further, since Rountree, the supreme court has clarified aspects of section
18.001 practice. In Allstate, it discussed what constituted “reasonable notice” of a
defendant’s basis for controverting an initial affidavit’s claims and held that a
counteraffidavit need only allow the plaintiff to understand “the nature and basic
issues in controversy and what testimony will be relevant,” such that the plaintiff
has sufficient information to enable it to prepare a defense or a response. 622 S.W.3d
at 879.
The supreme court again addressed the statute’s “reasonable notice”
requirements in Chefs’ Produce, 667 S.W.3d 297. Estrada sued Rangel and Chefs’
Produce, Rangel’s employer, alleging Rangel negligently caused a car accident in
which Estrada was injured. Id. at 299. Estrada served section 18.001 affidavits
showing that he had incurred approximately $20,000 in reasonable and necessary
medical expenses because of the accident. Id. at 299–300. Defendants filed a
counteraffidavit challenging the necessity and reasonableness of the expense. Id. at
–9– 300. In the counteraffidavit, defendants’ expert concluded that some of the care
Estrada received was neither necessary nor reasonable and that the rates charged for
some of the medically necessary care were inflated. Id. The trial court struck the
counteraffidavit on Estrada’s motion, which argued that the counteraffidavit
improperly challenged the cause of his injuries and the expert’s methods for
approximating a reasonable charge were unreliable. Id.
Defendants argued that the trial court erred in striking the counteraffidavit.
Id. The supreme court agreed, holding that the counteraffidavit “easily satisfied”
section 18.001(f)’s reasonable notice requirement because, “[w]here [defendants’
expert] believe[d] that Estrada received medically unnecessary treatment,
[defendant’s expert] outline[d] the basis for his opinion. Where he believe[d] that
Estrada’s treatment was medically necessary but billed at an inflated rate,
[defendants’ expert] explain[ed] what data he used to formulate that opinion.” Id. at
302.
In Chefs’ Produce, the supreme court was considering a pretrial ruling, not
the admissibility of a section 18.001 affidavit at trial. However, its analysis guides
us in our determination that the trial court did not abuse its discretion in excluding
Ortiz’s section 18.001 affidavits. First, the supreme court found that the defendants’
counteraffidavit, although it only partially challenged the necessity of Estrada’s
medical services and the reasonableness of the charges he incurred, complied with
section 18.001(f)’s requirements. Id. Second, in its analysis of section 18.001, the
–10– supreme court made clear that the effect of a defendant’s filing a “compliant
counteraffidavit” is that a plaintiff’s “evidentiary burden on the issue is the same as
if the initial affidavit had never been served.” Id. at 301.
Finally, we note that admission of a partially controverted affidavit could
prove difficult in practice. Had Ortiz requested that the trial court admit only the
uncontroverted portions of her section 18.001 affidavits, we do not see how the
admission would have been proper. For example, her Synergy Sports affidavit
states:
The service provided was necessary and the amount charged for the service was reasonable at the time and place that the service was provided. The amounts . . . further owed for the services total $6415.00.
Attached to the affidavit are approximately 110 pages of medical records. Le Cara
controverted only $3,465 of Synergy Sport’s charges, but there was no way to isolate
or redact a portion of the affidavit so that it reflected only that the uncontroverted
charges of $2,950 were reasonable.2
In sum, based on the plain meaning of section 18.001 and the supreme court’s
recent analysis of the statute, we conclude that the trial court did not abuse its
discretion in sustaining Nelapatla’s objections and excluding the LifeSciences and
Synergy Sports affidavits from evidence at trial. Ortiz’s first issue is overruled.
2 This may explain why Ortiz, on appeal, suggests that the trial court should be required to admit her section 18.001 affidavits in full and then either instruct the jury on the appropriate amount of damages to award or perform a remittitur. We certainly read nothing in section 18.001 to require burdening the trial court with either task. –11– Nelapatla’s Counteraffidavits
In her second issue, Ortiz asserts the trial court erred in sustaining Nelapatla’s
objections when Ortiz offered Guitreau’s and Le Cara’s counteraffidavits into
evidence.3 Ortiz asks the Court to hold that a section 18.001 counteraffidavit
constitutes an opposing party’s statement and, therefore, is not hearsay. See TEX. R.
EVID. 801(e)(2)(C), (D) (providing that a statement offered against an opposing
party is not hearsay if it was made “by a person whom the party authorized to make
a statement on the subject” or “by the party’s agent or employee on a matter within
the scope of that relationship and while it existed”). We decline to do so.
Generally, affidavits are “inadmissible hearsay upon the final trial of a case,
and without probative force” because the party against whom the affidavits are
introduced has no opportunity to cross-examine the affiant. Lewallen v. Hardin, 563
S.W.2d 356, 357 (Tex. App.—Dallas 1978, no writ); see also TEX. RS. EVID. 801(d),
802 (defining hearsay, which is generally not admissible, as an out-of-court
statement “offered to prove the truth of the matter asserted”); Ortega v. Cach, LLC,
396 S.W.3d 622, 630 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Except in
those instances specified by statute or rule, affidavits are not evidence in contested
cases”); Roberts v. Mullen, 446 S.W.2d 86, 90 (Tex. App.—Dallas 1969, writ ref’d
3 Ortiz did not move for admission of the counteraffidavits during the evidentiary portion of trial but, because she sought and obtained a pretrial ruling on their admissibility, we conclude she has preserved her complaint for our review. See In re Marriage of Harrison, 557 S.W.3d 99, 122–23 (Tex. App.— Houston [14th Dist.] 2018, pet. denied). –12– n.r.e.). Ortiz cites no Texas case, and we have found none, in which a court
concluded that an expert affidavit is admissible at trial as a statement by a party
opponent under Texas Rule of Evidence 801(e)(2).
Further, Nelapatla served the counteraffidavits in response to Ortiz’s section
18.001 affidavits, consistent with the statute’s purpose to “give reasonable notice of
the basis on which [Nelapatla] intend[ed] at trial to controvert the claim reflected by
the initial affidavit.” TEX. CIV. PRAC. & REM. CODE. § 18.001(f). Ortiz, then, was
required to introduce expert testimony of the reasonableness and necessity of her
medical expenses and costs at trial. See Chefs’ Produce, 667 S.W.3d at 301. Ortiz’s
reliance on the counteraffidavits to prove her reasonable and necessary medical
expenses at trial is contrary to the procedures set out in section 18.001. Under these
circumstances, we conclude the trial court had a legitimate basis for sustaining
Nelapatla’s objections and, therefore, did not abuse its discretion in excluding the
counteraffidavits as evidence at trial. See, e.g., Hong v. Bennett, 209 S.W.3d 795,
804 (Tex. App.—Fort Worth 2006, no pet.) (having determined that defense expert’s
counteraffidavit and attached report were sufficient to controvert plaintiff’s section
18.001 affidavit as to plaintiff’s chiropractic expenses, appellate court held trial
court abused its discretion in admitting both affidavit and counteraffidavit at trial).
Accordingly, Ortiz’s second issue is overruled.
–13– Nelapatla’s Supplemental Disclosure Responses
In her third issue, Ortiz contends the trial court erred in excluding Nelapatla’s
supplemental expert designation disclosure responses, which incorporated the
counteraffidavits by reference, from evidence. Ortiz asserts that the responses were
Nelapatla’s contentions and, citing Texas Rule of Civil Procedure 194.6, argues that
the responses would have been inadmissible only if they were later amended or
supplemented.
Ortiz did not request that the trial court admit the disclosure responses into
evidence during either the pretrial hearing or the evidentiary portion of trial. Instead,
she marked them during her offer of proof after the parties rested, stating only that
she was offering them into evidence “so the jury can see that they’ve designated
[Guitreau] to testify that the reasonable medical charges for the imaging services are
$9,700” and designated Le Cara “as an expert witness as well.” By not offering the
disclosure responses into evidence and obtaining a ruling before the parties rested,
Ortiz did not preserve this complaint for our review. See TEX. R. APP. P. 33.1;
Sharnese v. Lopez, No. 05-15-00780-CV, 2017 WL 2665268, at *2 (Tex. App.—
Dallas June 21, 2017, pet. denied) (mem. op.) (“Because Sharnese did not get a
ruling from the trial court on the admissibility of her damages exhibits when she first
attempted to offer them, and then failed to offer the exhibits again during the
evidentiary portion of the trial, she failed to preserve this issue for our review.”);
–14– Carlile v. RLS Legal Sols., Inc., 138 S.W.3d 403, 411 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (same). Ortiz’s third issue is overruled.
Conclusion
Nelapatla filed counteraffidavits that satisfied the requirements of section
18.001 for the purpose of providing notice to Ortiz of the nature and basic issues in
controversy so that Ortiz would have “sufficient information to enable [her] to
prepare a defense or a response.” See Chefs’ Produce, 667 S.W.3d at 302. Ortiz did
not challenge the counteraffidavits. Under the circumstances presented, we
conclude the trial court did not abuse its discretion in sustaining Nelapatla’s
objections to admission of Ortiz’s section 18.001 affidavits and Nelapatla’s
counteraffidavits as proof of the reasonableness and necessity of Ortiz’s medical
services and charges.
We affirm the trial court’s judgment.
/Craig Smith/ CRAIG SMITH JUSTICE
Partida-Kipness, J., dissenting. 220531F.P05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TATIA ORTIZ, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-22-00531-CV V. Trial Court Cause No. 416-02383- 2020. RAMU NELAPATLA, Appellee Opinion delivered by Justice Smith. Justices Partida-Kipness and Breedlove participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee RAMU NELAPATLA recover his costs of this appeal from appellant TATIA ORTIZ.
Judgment entered this 18th day of July 2023.
–16–