Dissenting Opinion Filed July 18, 2023 

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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 DISSENTING OPINION Before Justices Partida-Kipness, Smith, and Breedlove Dissenting Opinion by Justice Partida-Kipness The majority’s interpretation of secti on 18.001 disregards its plain language and will lead to misguided and unjust results that violate the statute’s purposes. I, therefore, dissent. To begin, the majority’s decision is contrary to the plain language of the statute. A claimant’s Section 18.001 affida vit “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” if a “controverting affi davit” is not served as provided under–2– section 18.001. See T EX
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. C ODE § 18.001(b). To comply with the statute, a counteraffidavit must: [G]ive reasonable notice of the ba sis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person au thorized to administer oaths. The counteraffidavit 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. The counteraffida vit may not be used to controvert the causation element of the cause of ac tion that is the basis for the civil action. T EX
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. C ODE § 18.001(f). Section 18.001, thus, speaks in terms of “affidavits” proving up a claimant’s reasonable and necessary expenses for se rvices such as medical expenses, and “counteraffidavits” filed “to controvert” th e claims made in th e initial affidavit. See T EX
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. C ODE § 18.001(b), (e), (f). Black’s Law Dictionary defines “controvert” as follows: To dispute or contest; esp., to deny (as an allegation in a pleading) or oppose in argument <the allegations in Peck’s pleadings were never adequately controverted>. Controvert , B LACK ’ S L AW D ICTIONARY (11th ed. 2019); see also Controvert , https://www.merriam-webster.com/dictionary /controvert (last visited June 20, 2023) (defining controvert as “to dispute or oppose by reasoning.”). Applying the plain terms of the statute, I would hold the portions of a Section 18.001 affidavit that are not controverted (i.e., are not disputed, contested, or opposed) by a counteraffidavit remain admi ssible and constitute sufficient evidence–3– to support a finding that the uncontrove rted amount charged was reasonable or the service was necessary because no c ontroverting affi davit was filed as to those
expenses . Without a controverting affidavit, the initial affidavit “is sufficient evidence to support a finding of fact by j udge or jury that the amount charged was reasonable or that the service was necessary.” See T EX
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. C ODE § 18.001(b). In the majority opinion, my collea gues conclude a c ounteraffidavit is sufficient to render the initial affidavit inadmi ssible in total if the counteraffidavit is filed and complies with section 18.001( f). According to the majority, a counteraffidavit is compliant if it is ma de by a qualified person and contravenes all or part of the initial affidavit, and “to be compliant, a counteraffi davit need not fully controvert a plaintiff’s affi davit.” Under this holding, th e majority affirms the trial court’s decision to bar admission of the S ection 18.001 affidavits in their entirety rather than only those parts of the affidav its controverted by a counteraffidavit. They essentially hold that the substance of a counter affidavit is irrelevant if it is facially compliant with section 18.001(f ). By interpreting section 18. 001 as an all-or-nothing provision, the majority ignores what it mean s to controvert evidence. Moreover, the majority’s interpretation ignores the stat ute’s requirement that a counteraffidavit “give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit.” See T EX
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.–4– C ODE § 18.001(f). I disagree with this interpre tation and believe it is contrary to the plain language of the statute. The majority’s contrary interpretation al so conflicts with this Court’s opinion in Rountree v. Cavazos , No. 05-16-00512-CV, 2017 WL 2730422, at *1 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.). In Rountree , the trial court admitted into evidence at trial Section 18.001 affidavits from five of the claimant’s medical providers and the c ounteraffidavit provided by th e defendant’s expert, Dr. West. Id. at *3. On appeal, the defendant, S kyler Rountree, challenged the admission of the billing records. Id. Rountree argued the billing records should have been excluded from evidence because she served the counteraffidavit from Dr. West. Id. This Court disagreed. Id. We explained that Dr. West ’s counteraffidavit included “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.” Id. at *4. We concluded that, although Dr. West’s countera ffidavit addressed the necessity of the services provided, it failed to controvert the reasonabl eness of the medical bills. Id. Therefore, “the counteraffidavit did not gi ve 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.” Id. We affirmed the trial court’s admission of the medical billing affi davit to establish the reasonableness of the fees charged. Id.–5– I would apply this same logic and analysis to the question posed in the case before us. Here, the counteraffidavits cont roverted some but not all of the medical expenses included in Ortiz’s Section 18. 001 affidavits. In other words, like in Rountree , the counteraffidavits he re controverted only part of the Section 18.001 affidavits. In Rountree , we affirmed admission of the uncontroverted portions of the section 18.001 affidavit even though other pa rts of the affidavit were controverted and inadmissible. Logic dictates the same result in this case. I would conclude the uncontroverted portions of Ortiz’s Sec tion 18.001 affidavits were admissible because they were not controverted by counteraffidavit. As a result, the counteraffidavits did not comply with se ction 18.001(f) as to the uncontroverted expenses because they did not “give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit.” See , e.g. , Rountree , 2017 WL 2730422, at *4; see also Turner v. Peril , 50 S.W.3d 742, 748 (Tex. App.—Dallas 2001, pet. denied). The counteraffidavits did not give Ortiz reasonable notice that Nelapatla wa s challenging the uncontroverted expenses. I would hold the counteraffidavits did no t remove Ortiz’s ability to rely on her affidavits to avoid adducing expert te stimony on those uncontroverted expenses. See T EX
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. C ODE § 18.001(b) (“Unless a c ontroverting affidavit is served as provided by this section, an a ffidavit that the amount a person charged for a service was reasonable at the time and pl ace that the service was provided and that–6– the service was necessary is sufficient evid ence to support a finding of fact by judge or jury that the amount charged was reasonab le or that the servic e was necessary.”). Further, today’s ruling undermines the purposes of section 18.001 to streamline proof and lower litigation costs. Section 18.001 is a “purely procedural statute” designed to “streamline proof of th e reasonableness and necessity of medical expenses.” In re Allstate Indem. Co. , 622 S.W.3d 870, 881 (Tex. 2021) (orig. proceeding) (quoting Haygood v. De Escabedo , 356 S.W.3d 390, 397 (Tex. 2011)); Henry v. Thompson , No. 01-01-01211-CV, 2003 WL 1091766, at *3 (Tex. App.— Houston [1st Dist.] Mar. 13, 2003, no pe t.) (mem. op.) (“The purpose of section 18.001 is to dispense with the required e xpert testimony in situations where the medical expenses are uncontes ted.”). As this Court has recognized, an additional benefit of section 18.001 is significantly decreased litigation costs, especially for claimants in personal injury suits. Rountree , 2017 WL 2730422, at *1 (“A medical provider’s section 18.001 affidav it can save a plaintiff the expense of having to hire an expert to testify that her medical e xpenses were reasonabl e and necessary.”); Turner , 50 S.W.3d at 746 (“Section 18.001 pr ovides a significant savings of time and cost to litigants, particularly in pers onal injury cases, by pr oviding a means to prove up the reasonableness and necessity of medical expenses.”). The majority’s interpretation of the statute unnecessarily increases a claimant’s costs by requiring the claimant to hire an expert to tes tify to the reasonableness and necessity of uncontroverted expenses.–7– Here, a Section 18.001 affidavit file d by Ortiz reflecte d $11,250.00 charged by LifeSciences Imaging Partners, Inc. In her counteraffidavit, Guitreau concluded $9,774.54 of the charges were “fair and reasonable” because they fell below the “50% percentile” threshold Guitreau used in her analysis. Guitreau stated the remaining $1,475.46 were not fair and reas onable charges because they exceeded the 50% percentile threshold. Guitreau, th erefore, controverted only $1,475.46 of the total charges. Similarly, a Section 18.001 affidavit filed by Ortiz showed $6,415 charged by Synergy Sports Rehab. In his count eraffidavit, Le Cara stated the “[t]otal of reasonable and necessary chiropractic bills at usual and customary fees was $2,950.” He also stated that “a portion of the medical treatment and charges were not reasonable and necessary.” Le Cara concluded that certain “modalities and procedures were not medica lly necessary, or the medical records provided did not substantiate the use of the code” and lis ted certain CPT code s as not medically necessary. But he did not state a specific amount of charges he deemed unreasonable or unnecessary. I presume, as Ortiz does, that Le Cara controverted the remaining $3,456 charged by Synergy Sp orts Rehab charges. I conclude Ortiz should not have been re quired to incur the expense of hiring an expert witness to testif y the $9,774.54 charged by Life Sciences Imaging Partners, Inc. and the $2,950 charge d by Synergy Sports Rehab were reasonable and the services necessary, when ne ither Guitreau nor Le Cara said those expenses were unreasonable or unnecessary. In fact, Guitreau and Le Cara concluded those charges–8– were reasonable and necessary. The trial c ourt’s refusal to admit the uncontroverted portions of Ortiz’s Section 18.001 affidavits is contrary to the pu rpose of the statute and should be reversed. Finally, the majority’s ruling today will re sult in absurd and unjust results and presents non-claimants with an opportunity for gamesmanship. Consider this example: A claimant files a Section 18. 001 affidavit showin g $100,000 in medical expenses, and the defendant files a counteraffidavit challenging a single line-item expense of $100. Under today’s ruling, the claimant’s entire affidavit is inadmissible, and the claimant mu st hire an expert to testif y for her at trial as to all the provider’s charges, not just the $100 challenged by counte raffidavit. Such a result benefits only the defenda nt, undermines the purposes of the statute, and should not stand. In this case, I would conclude the tria l court abused its discretion by excluding the portions of the Section 18.001 affidavits the counteraffidavits did not controvert. I would also find the error was harmful because the jury was not permitted to consider any of the bills from LifeScie nces Imaging Partners, Inc. and Synergy Sports Rehab. As a result, the jury was presented with no evidence of medical expenses for those treatments, and Ortiz was awarded zero dollars for those
expenses. See Singleton v. Bowman , 557 S.W.3d 711, 716–1 7 (Tex. App.— Texarkana 2018, pet. denied) (harmful erro r to exclude all medical billing records for the first ninety-day period because the jury was presented with no evidence of–9– the medical expenses incurre d after the accident for that time period a nd rendered a zero-dollar verdict on that damage element); see also Tex. Health Harris Methodist Hosp. Fort Worth v. Featherly , 648 S.W.3d 556, 582 (Tex. App.—Fort Worth 2022, pet. denied) (“Because the evidence that Featherly endorsed the contract and the dollar amount of the bill was crucial to th e key issue of ratification, the erroneous exclusion of that evidence was harmful and reversible.”). Accordingly, I would reverse the judgmen t and remand to the trial court for a new trial on liability and damages. See T EX
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. P. 44.1(b) (court of appeals may not order separate trial solely on unliqui dated damages if liability is contested); see also Estrada v. Dillon , 44 S.W.3d 558, 562 (Tex. 2001) (remand for new trial only on damages issue is improper even where appellant did not challenge liability postjudgment); Transp. Ins. Co. v. Faircloth , 898 S.W.2d 269, 275 (Tex. 1995) (“[A]n appellate court generally ma y not reverse and render a different judgment based on excluded evidence.”). Because the majority opini on fails to do so and, in the process, disregards the plain language of the statut e, undermines the statute’s purposes and intent, and conflicts with a prior opi nion from this Court, I dissent.

220531DF.P05 /Robbie Partida-Kipness / ROBBIE PARTIDA-KIPNESS JUSTICE