Texas Supreme Court Reshapes Chapter 18 Counter-Affidavit Practice in Ortiz v. Nelapatla

By Rick Chavez 

The Texas Supreme Court’s recent decision in Ortiz v. Nelapatla significantly reshapes Chapter 18 counter-affidavit practice and may alter how parties challenge medical expense evidence moving forward.  

In Ortiz, the Court held that a counter-affidavit under § 18.001 only impacts the specific portions of the plaintiff’s affidavit that are actually controverted. In other words, a partial challenge to medical expenses does not destroy the evidentiary value of the entire affidavit. Instead, the uncontested portions remain admissible and may still constitute sufficient evidence of reasonableness and necessity without live expert testimony. Specifically, the Court stated that the controverted portions of the affidavits would simply be redacted, while the uncontroverted portions could still be presented to the jury. 

This is a meaningful shift from how many practitioners had been approaching counter-affidavits after In re Allstate. Following Allstate, defense counsel increasingly relied upon relatively inexpensive bill auditing experts to challenge the reasonableness of charges, often with the understanding that a compliant counter-affidavit would effectively eliminate the plaintiff’s ability to rely on the § 18.001 affidavit procedure altogether. 

Ortiz substantially narrows that strategy. If the defense only controverts reasonableness, the plaintiff may still rely upon the affidavit to establish necessity. Likewise, unchallenged portions of the bills may still come into evidence through the affidavit process. 

The decision also creates a potential strategic concern for the defense. Many counter-affidavits identify an alternative “reasonable” amount for the challenged charges. Under Ortiz, plaintiffs may now attempt to use the defense counter-affidavit itself as evidence that at least some amount of the medical charges was reasonable and necessary. 

Practically speaking, Ortiz likely increases the value of physician counter-affidavits that challenge not only reasonableness, but also necessity, duration of treatment, and escalation of care. I suspect we will begin seeing a shift away from purely billing-auditor-based counter-affidavits. 

At a minimum, Ortiz likely incentivizes broader counter-affidavits that contest both reasonableness and necessity, while also requiring more disciplined drafting regarding what charges or treatment the defense is implicitly conceding as reasonable or necessary.