Proving Your Past Medical Bills in Texas

Attorney Doug Goyen Our Dallas auto accident injury attorney at the Law Office of Doug Goyen handles personal injury and wrongful death cases for people in Dallas and throughout Texas. Since our inception in 1997, we have established a track record of success, obtaining millions of dollars in verdicts and settlements for our clients. Our commitment has been and always will be to meet our clients’ needs by pursuing the best possible outcome in their case.

The Law Office of Doug Goyen represents people who need a personal injury attorney because of a car accident, a truck accident, or other injuries caused by someone else’s negligence or actions. We recover damages for injuries sustained in accidents, including medical bills. Call us today at (972) 599 4100 for a free case review and strategy session about your case. We will begin working on your case right away.

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Injured person Personal injury law in Texas allows a person who has been injured as a result of another’s negligence to recover medical bills from accidents that occurred in the past and in the future that were caused by the negligence. If you have been involved in an auto injury accident in Dallas, Texas or the surrounding area, you will most likely encounter the following excuses from insurance adjusters as to why they do not want to pay your full medical bills that were caused by


The following is a description of what the laws are with regard to medical bills related to a personal injury case such as an automobile accident case – and what the law is regarding the introduction and use of those bills in a personal injury case related to an accident or other personal injury case.

Past Medical Expenses: In order to recover for past medical expenses in court, a person must demonstrate the amount of the expense, the necessity of the treatment, and the reasonableness of the expense. This can be demonstrated by introducing the actual bill, having the plaintiff testify to the amount, and having a representative from the medical facility testify that this was their charge and that it was reasonable. In some cases, the medical facility is also required to produce a doctor to testify that the treatment was necessary for the injury. Blankenship v Mirick, 984 S.W.2d 771 (Tex.App.–Waco 1999, pet. denied).

Future Medical Expenses: For future medical expenses, Texas follows a “reasonable medical probability” rule. This is something that a jury will have to decide. There is no requirement for “precise” evidence, but courts prefer “medical testimony” to demonstrate future medical expenses.. Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768 (Tex.App.–Houston [14th Dist.] 1998, pet. denied).

Medical Bill Future medical expenses may be awarded by courts and juries based on the nature of the injuries, the medical care provided prior to the trial, and the injured person’s condition at the time of trial.

If there is evidence of future medical expenses and a jury awards money for that amount, the jury verdict must be upheld. Beverly Entm’t of Tex. v. Leath, 829 S.W.2d 382 (Tex.App–Waco 1992, no writ). This means that you don’t have any “magic words” to prove your future medical expenses to the court. If the jury awards money for this element of damage, the courts will infer the “reasonable medical probability” language into the evidence as long as the evidence points to the fact that there will (or probably will) be future medical expenses.

Medical Bills for Minors: Because parents are responsible (liable) for their minor child’s medical expenses, the parent is the one who collects for those expenses.

When a minor reaches the age of 18, they become an adult and are eligible to receive compensation for medical expenses. Molina v. Moore, 33 S.W.3d 323 (Tex.App.–Amarillo 2000, no pet.).

The recovery may need to be divided into several stages, as the parents may need to recover for medical bills incurred while the minor was under the age of 18, and the minor (now an adult) may need to recover for medical bills incurred after he turned 18. If a parent is negligent or partially negligent (contributory or comparative negligence), it affects only the parent’s portion of the recovery (not the minor’s). Roth v Law, 579 S.W.2d 949 (Tex.Civ.App.–Corpus Christi 1979, writ ref’d n.r.e.).

If, on the other hand, the minor is contributory or comparatively negligent, both the minor and the parent’s recovery will be hampered. Dartez v. Gadbois, 541 S.W.2d 502, 509 (Tex.Civ.App.–Houston [1st Dist.] 1976, no writ).

Transportation Expenses: If you incur transportation costs while seeking medical treatment, Texas law allows you to recover those costs. Coca-Cola Bottling Co. of Plainview v White, 545 S.W.2d 279 (Tex.Civ.App.–Waco 1977, no writ).

Nursing Services When Caring for Catastrophic Injury: When a person suffers a catastrophic injury, they are frequently released from the hospital, and a family member must spend countless hours caring for and tending to the injured person’s needs. Although the family member is not officially a “nurse,” the at-fault party may still be liable for the “reasonable value” of the nursing services provided. Even if the services are provided for free (no bill is generated), a recovery may be made. The services provided must be distinct from those typically provided by a spouse or family member (in other words, cooking and cleaning in the house that you normally did anyway is not recoverable). You must obtain the testimony of a qualified nurse or nursing home administrator to demonstrate the “reasonable value” of the nursing service. Transp. Ins. Co. v. Polk, 400 S.W.2d 881 (Tex. 1966).

The right of family members of catastrophically injured people to future medical care has been upheld in Texas courts.. In Baptist Mem’l Hosp. Sys. v. Smith, 822 S.W.2d 67 (Tex.App.–San Antonio 1991, writ denied), The court upheld a $1.3 million award for future medical expenses based on 24-hour care provided by family members.

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Calculating what you are entitled to for medical bills incurred as a result of an accident can be a difficult task due to the various types of insurance that are involved. You have health insurance, first and third-party auto insurance, and possibly government insurance such as Medicare, Medicaid, and Workers Compensation. Texas Civil Practices and Remedies Code (CPRC) section 41.0105 states that the amount that can be recovered for medical or health care expenses is limited to the amount actually paid or incurred by or on behalf of the claimant.

In practice, this means that if you have a $10,000.00 medical bill, but your health insurance receives a contractual adjustment of $5000.00, and the total amount owed for that bill is only $5000.00, you can only receive the actual amount paid or owed for that bill. This includes any health insurance payments. So, continuing with the above example, if health insurance paid $3800 of the $5000 owed, and the patient owes the remaining $1200 for copays, deductibles, or uncovered expenses, you add what health insurance paid to the amount the patient owes (or may have paid), and that is the total amount allowed in a lawsuit for medical bills owed.

The collateral source rule is ignored by this law. The collateral source rule, which states that it “precludes any reduction in a tortfeasor’s liability because of benefits received by the plaintiff from someone else – a collateral source,” is still in effect in Texas. Hagood v. DeEscabedo, 356 S.W.3d 390, 394-95 (Tex. 2011). For example, “insurance payments to or for a plaintiff are not credited to damages awarded against the defendant.” Haygood, 356 S.W.3d at 395 (citing Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 274 (Tex. 1999); Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980)). As stated by the Texas Supreme Court, the theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy. See Brown, 601 S.W.2d at 935. The collateral source rule reflects “the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor.” Haygood, 356 S.W.3d at 395.

But the Texas Court went on to state in 2011 that to impose liability for medical expenses that a health care provider is not entitled to charge does not prevent a windfall to a tortfeasor it creates one for a claimant. Id. (citing Daughters of Charity Health Serv. of Waco v. Linnstaedter, 226 S.W.3d 409, 412 (Tex. 2007)). As a result, the Texas Supreme Court ruled that “the common-law collateral source rule does not permit recovery as damages for medical expenses that a health care provider is not entitled to charge.” Haygood, 356 S.W.3d at 396.

Regrettably, the Texas Supreme Court and Legislature have disregarded the rationale for the collateral source rule, which is that “a wrongdoer should not benefit from insurance procured independently by the injured party and to which the wrongdoer was not privy.”

A “contractual adjustment” is exactly what it sounds like: it is a contractual adjustment. The injured person pays premiums for the health insurance policy, and one of the benefits they receive is their health insurance company’s ability to negotiate the amount they will be required to pay – contractually. According to the Court’s decision and the statute, the wrongdoer is “privy” to that contract. Certain health insurance policies receive little to no contractual adjustments and pay the full amount of the bill (less any copays or deductibles paid by the injured person), while others do not have health insurance.

The wrongdoer benefits the most from causing harm to the most accountable person (the person who purchased health insurance). The wrongdoer benefits from the responsible party’s health insurance policy and the ability to negotiate contract modifications. The wrongdoers are not responsible for those premiums because they are not a party to the health insurance contract. Regardless of how absurd the Texas Supreme Court’s ruling is, it has become law in the state.

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To persuade an insurance company to take your case seriously, you should prepare your previous medical bills as if they were going to be used in a lawsuit. Thus, in this section, we will discuss how to prepare your medical bills for admission into evidence.

To begin, you must obtain both your medical bills and records. These are typically ordered from two different departments within medical facilities: the billing department for the bill and the medical records department for the records. You can introduce them into evidence in the following ways during the trial.

1) Live testimony or deposition testimony under oath from a medical facility can make bills and records admissible in court in Texas. A representative of the medical facility would have to appear in court or take a deposition to testify that the bills being introduced are admissible under Texas law (TRCP for depositions; and TRE for in court testimony). The plaintiff’s attorney will then obtain testimony from a representative of the medical facility attesting that the records introduced are admissible under Texas law. This is typically two distinct individuals in today’s world. Oftentimes, the treating physician has no control over the billing – the bills are determined by the hospital or other personnel at the surgical center. Someone who is knowledgeable about the reasonable amount of the bills would be required to testify regarding the billing records. The medical records would be established through testimony from another party, such as a physician or a medical records custodian. This is the most time-consuming and expensive method of obtaining admissible bills and records. Physicians and their staff despise testifying in court. Nor do they relish the prospect of missing half a day of work to give an oral deposition. Frequently, the doctor will charge an exorbitant fee for their time testifying in court or giving an oral deposition. Oral depositions are the most expensive and inefficient method of obtaining testimony regarding the admissibility of medical bills and records.

2) Depositions on written questions (DWQs): Many lawyers use DWQs to make billing records and medical records admissible under Texas Rule of Civil Procedure (TRCP). Written depositions, also known as DWQs, are sessions in which a lawyer submits written questions to a notary or court reporter in order to have a witness answer in writing under oath. The opposing lawyer is also permitted to submit written questions. The DWQ issues a subpoena to obtain the medical bills and records. Two DWQs are completed, one for the bills and one for the records. Notice is sent to the witness and other lawyers involved, along with the written questions to be asked with the subpoena. Everyone must be given 20 days’ notice before the DWQ date; this allows the opposing attorney time to write and submit their own questions, as well as time for the medical facility to respond to the written questions.

The plaintiff’s attorney will draft questions that will allow both the bills and the records to be admitted. The notary or court reporter attaches the subpoenaed medical bills and records to the DWQs. The notary or court reporter sends the witness a copy of the DWQ and subpoena so that they can write answers and produce bills and records. Following that, the notary or court reporter prepares a final copy of the DWQs for the witness to sign. A copy of the DWQ with answers, as well as any documents produced in response to the subpoena, is then sent to each lawyer. After that, a copy must be filed with the court. This method of presenting medical bills and records is far more convenient than live court testimony or oral depositions. The medical facility can respond to the written questions at their leisure. Medical facilities are far more willing to conduct written depositions than they are to conduct live oral depositions. A written deposition is less expensive than an oral deposition. DWQs, like oral depositions, are typically not taken until after a lawsuit has been filed.

3) Affidavits (18.001 Affidavits for Medical Bills and Rule 902 Records Affidavits): Affidavits are the quickest way to get medical bills and records admissible. Affidavits can be obtained prior to the filing of any lawsuit.

18.001 Medical Bill Affidavit: (New Rule enacted Sept 1, 2019 regarding deadlines on Affidavits and Causation) According to Texas Civil Practices and Remedies Code (CPRC) 18.001, an uncontroverted affidavit in the form prescribed in CPRC 18.002 is sufficient to demonstrate that the amount charged was reasonable and necessary at the time and place the service was provided. The 18.001 affidavit obtains admission of the bills and, if uncontroverted, establishes the reasonableness and necessity of the amounts charged by the medical facility. To refute the plaintiff’s 18.001 affidavit, the opposing party may file a counter affidavit. The counteraffidavit must give reasonable notice of the basis for intending to controvert the claim at trial and must be made by a person who is qualified to testify in contravention of the matters contained in the 18.001 affidavit by knowledge, skill, experience, training, education, or other expertise. A Defendant must file an 18.001 Affidavit within 90 days of filing an Answer in the lawsuit, and the Defendant must file a controverting affidavit within 120 days of filing an Answer.

902 Documents Affidavit in support of medical records: The rules and form of an affidavit that can be used to make medical records admissible are set out in Texas Rules of Evidence (TRE) 902(10). The medical facility’s records custodian can complete the 902 affidavit.

Both the 18.001 Affidavit and the 902 Affidavit can and should be obtained prior to the filing of any lawsuit, and then produced to the opposing party and filed with the court as soon as the Defendant responds to the lawsuit. Although there are no rules requiring both the 18.001 and 902 Affidavits to be served at the same time, in practice, a personal injury lawyer should send both the 18.001 and 902 Affidavits to the opposing party, along with notice to the court, at the same time. The Defendant could argue that they were not provided with the medical records that support the bills, and that this prevented them from contesting the 18.001 affidavit. One counter-argument is that itemized bills with diagnosis codes show what was treated and the amounts charged, and based on the plain language of 18.001, only the 18.001 affidavit with the itemized bills and diagnostic codes is required for the Defendant to dispute whether the amount billed was reasonable and if the treatment rendered was necessary to treat the injury indicated in the t

The effect of an 18.001 Affidavit with no controverting affidavit: Texas courts have held that an uncontroverted 18.001 Affidavit is evidence to prove that the bills for the treatment received were reasonable and that the treatment for those bills was necessary. If the Defendant does not object to the 18.001 affidavit, the Plaintiff may file a motion for summary judgment on the bills’ reasonableness and necessity. Even in the case of a summary judgment, Texas courts allow the Defendant’s lawyer to introduce evidence that the bills and treatment were not caused by the accident or injury claimed in the case. For example, if the Defendant had evidence that the injury was caused by something other than the accident at issue in the lawsuit.

The effect of a controverting affidavit: If an 18.001 Affidavit is served on the Defendant and the Defendant files a counteraffidavit, there appears to be a split in the courts as to what should be done. Some courts will accept the 18.001 Affidavit as well as the counteraffidavit. Other courts have ruled that if a counteraffidavit is filed, the Plaintiff must prove their medical bills and records in another way (such as using DWQs, oral deposition, or live testimony at trial).

Motion to strike a counteraffidavit, in conjunction with a Motion for Summary Judgment: If the counteraffidavit is defective in some way, the Plaintiff may file a motion to strike it. For example, if the Defendant hired a chiropractor to make a counteraffidavit to controvert an orthopedic surgeon’s 18.001 Affidavit, the Plaintiff should be able to strike the Defendant’s counteraffidavit because the chiropractor is not qualified to opine on the reasonableness and necessity of an orthopedic surgeon’s treatment and bills. In this case, the Plaintiff should file a Motion for Summary Judgment at the same time in order to prevent the Defendant from introducing evidence regarding the reasonableness and necessity of the bills and treatment for the injury.

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However, there are a few pitfalls to be aware of. When it comes to medical bills in an auto injury accident in Dallas or the DFW area, common areas where insurance companies try to avoid payment are: 1) bills that are too high, 2) treated too frequently, 3) failure to follow doctor’s orders, 4) prior similar injury, 5) subsequent injury, 6) faking it, and 7) bills that have been paid, written off, or adjusted.

This is why, if you have been injured in or around Dallas, Texas, you will almost always need to hire an auto accident injury lawyer.

1. Medical bills are excessively high. Insurance companies are well aware of this. They frequently claim that the bills are far in excess of what is reasonable. They rarely back this up with anything you can use; they simply “claim” it. When they claim this, be sure to ask them to please send you documentation proving that their medical bills were excessively high. Inform the adjuster that you would greatly appreciate their assistance because you will be able to use their documentation to show that the doctors’ bills were excessively high when you call your doctors to try to negotiate the bills down to a reasonable rate. Unfortunately, the liability insurance company will not usually do this. They usually just make up numbers, and they almost never give you anything you can show your doctor or hospital to prove that the bills are indeed excessive.

2. Overtreated: Your insurance adjuster will frequently claim that your doctor “overtreated” you. They will argue that the “standards” indicate that you should not have had the MRI or that you should only have gone for treatment three times rather than fifteen. Again, ask the insurance adjuster for documentation so you can show it to your medical facility when you try to get them to reduce their bill. Typically, the adjuster will refuse to send you anything. Again, when they tell you this, they usually make up numbers. If they do send you something, make sure you send it to your doctor and ask them to put something in writing supporting their treatment so you can get the insurance company to pay the bill.

3. Didn’t Obey Doctor’s Orders: Due to our hectic schedules, we frequently miss doctor’s appointments and try to make them up later. If your injury is chronic, the insurance adjuster will use this against you. They will argue that if you had simply followed your doctor’s orders, you would have fully recovered. However, because you chose to disregard your doctor, you harmed yourself, and this is not their fault.

4. Prior Similar Injury: If your neck was injured in a car accident, the insurance adjuster will look into your medical history and claims history to see if there are any previous similar injuries. If you have had a previous neck or shoulder injury (regardless of whether you recovered or how long ago it was), they will try to claim that you already had this injury and are simply attempting to claim an old injury from this accident.

5. Subsequent Injury: For example, if you are injured in an auto accident on January 1 and have been seeing a doctor for your injury while recovering, and then on January 30 you are injured again in another accident of some kind, the insurance adjuster for BOTH incidents will use this against you. The adjuster from the January 1 incident will cut off any medical bills he will pay for on January 30 (the date of the second incident), while the adjuster from the January 30 incident will claim that you were already hurt and will try to avoid paying ANY medical bills at all.

6. Insurance Adjuster Accuses Client of Falsifying Injury: Insurance adjusters frequently treat injured people as if they are “faking it” and refuse to pay your medical bills. This is most common in the following scenarios:

  1. Damage to vehicle appears minor: If the damage to your vehicle appears minor, the adjuster will use this against you in order to avoid paying your medical bills.
  2. The Client Has Multiple Prior Claims: If you have had the misfortune of being the victim of several bad drivers in the last few years, and have been hurt in those collisions, the adjuster will try to label you as a “career claimant,” and act as if you are trying to make a career out of being hurt. They will take advantage of this situation and refuse to pay your medical bills.
  3. If Any Inconsistencies in the Medical Records: If there are any inconsistencies in your medical records, they will try to claim you are making up symptoms and will try to avoid paying your medical bills.

7. If The Bills Have Been Paid: If your medical bills have been paid, written off, or adjusted, your insurance adjuster will act as if they are not owed and will attempt to avoid paying your medical bills.

  1. Paid Medical Bills: If your medical bills were paid by a health insurance-type plan, such as your health insurer, Medicaid, Medicare, Workers Compensation, or another health source, you are likely legally or contractually obligated to repay the health insurance-type plan out of any money you receive from the liability insurance adjuster. The adjuster will not tell you this and will act as if this is “free money” that they do not have to repay. This could land you in legal trouble with your health insurance plan. You MUST recover enough money to repay them, and then repay them – or negotiate something with them.
  2. Written Off Medical Bills: If you gave your bills to charity or wrote them off as a bad debt, you must still recover the money for those bills. Charity – If the hospital or doctor discovers that you settled for money with an automobile insurance company, they will revoke their charitable write-off and demand that you pay them out of the proceeds of your settlement. Bad Debt – If your medical facility has written off your bills as a bad debt, it often means they have turned this in on your credit, or worse, have turned it over to bill collectors – which means the only way to repair your credit or get those bill collectors off your back is to pay off the bad debt.

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The Law Office of Doug Goyen represents people who have been injured in accidents and need compensation for their injuries, including medical bills. If you have been injured in an accident and have bills, call the Law Office of Doug Goyen at (972) 599 4100. Our personal injury attorney offers expertise and strong representation. We will begin working on your case right away.

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Client Reviews
You want a great lawyer who keeps you informed on whats going on speaks with you personally and gets the job done call Doug Goyen. He is excellent & very professional you wont go wrong choosing him!! Thanks again for all your help Mr. Goyen! Socorro V.
Very efficient staff. I am VERY pleased with this firm. Gina W.
Very professional job handling my accident claim. I had some ER bills, and some visits to my ortho after (and various other bills that kept coming in). I was afraid I was going to get stuck owing money, but Doug Goyen took care of the case and had everything paid, including compensating me for the injury. Great lawyer IMO. I felt like my case was taken care of very well. Thx!! Bernard M.
Doug is a great attorney. He took care of my auto accident claim promptly, and answered any questions I had. I also had one of my hospital bills go into collections for non-payment. I was able to contact Doug a year after the accident, and received a copy of the check the hospital claimed they didn’t receive. I highly recommend this guy. David J.
The Law Office of Doug Goyen helped me recovery every bit I was owed on my claim. Very happy I used them. They knew what they were doing, and kept me informed. I felt taken care of the whole way. You wont go wrong using them. Arthur H.
Mr. Goyen helped me take on my own insurance company, the great and mighty Allstate. My prior firm basically dumped me, with a permanent injury because the case didn’t meet their financial guidelines for a settlement. I was a bicycle rider hit by a car driver at an intersection, and Allstate was the company on BOTH SIDES OF THE CLAIM. My own insurance company tried to throw me under the bus to limit their payout! Without Mr. Goyen’s help, I would have been left with NOTHING! I had thousands of dollars in unpaid medical bills, unable to receive treatment to correct the issue. He was unafraid and helped me get the best settlement I could … I am tremendously thankful! Pamala M.