Countering Counter-Affidavits

The affidavit-counteraffidavit procedure in Tex. Civ. Prac. & Rem. Code § 18.001 streamlines the handling of evidence about whether services are reasonable and necessary. That said, the process can generate controversy, as it did in Ortiz v. Nelaplatla, where the defendant’s counteraffidavits in a personal-injury case only addressed some of the matters in the plaintiff’s affidavits.

The panel majority summarized: “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.’ 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.” (citation omitted).

A dissent expressed concern about the majority’s fidelity to the statutory text and the practical consequences of its opinion. No. 05-22-00531-CV (July 18, 2023) (mem. op.).