In order to prove a claim for damages caused by another person’s negligence, the injured party (the plaintiff), must prove the following at trial to prevail:
- The existence of a duty owed by the defendant to the plaintiff;
- A breach of the duty by the defendant;
- The breach of the duty caused harm to the plaintiff; and
- The damages sustained by the plaintiff.
If the plaintiff does not prove one or more of these elements at trial, they are no entitled to recover any money. This post will focus on the 4th element – damages.
In personal injury cases filed in Texas, medical bills and costs are frequently the most important evidence to establish damages. Juries frequently tie other elements of damages, i.e. disfigurement, disability, pain and suffering, to the total medical expenses paid or incurred. Thus, it is extremely important in most cases to establish those medical expenses.
Texas law[1] allows Plaintiffs to file medical and billing record affidavits with the court to establish the reasonableness and necessity of medical treatment. From a practicable standpoint, this law allows the plaintiff to establish damages by an affidavit instead of a live witness.[2]
Prior to 2019, Texas law allowed plaintiffs to file the medical and billing record affidavits anytime up to 30 days before trial. It takes at least 12-18 months to bring a case to trial after filing the lawsuit, so in most cases a plaintiff could file those affidavits over a year after the lawsuit is filed.
In 2019, the law changed. Under the new rule, the party offering the affidavit in evidence must file it:[3]
- 90 days after the date the defendant files an answer; or
- On the date the offering party must designate any expert witness under a court order; or
- On the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure.
With the 2019 change, there is now a chance that a plaintiff could be required to file their affidavits within 4-6 months of filing the lawsuit which can be as much as 6-12 months before going to trial. Although the new rule, in many negligence case, shortens the time period within which the Plaintiff can file an affidavit regarding medical and billing records, it still provides a method to allow the Plaintiff to save the cost, at trial, of having to call witnesses to testify about the medical and billing records. A competent personal injury attorney needs to be aware of the new rule in order to make sure that all filing deadlines are complied with. Here at The Wilhite Law Firm, we take filing deadlines seriously.
If you or a loved one have been injured in an accident, YOU WANT WILHITE! Don’t delay, call 214.888.8080 for a free consultation with Texas team today!
[1] Texas Civil Practice and Remedies Code § 18.001.
[2] Affidavits are hearsay, and therefore not usually admissible at trial to establish facts.
[3] Texas Civil Practice and Remedies Code § 18.001(b).
