Texas Civil Practice and Remedies Code Section 41.0105 limits recoveries of medical care expenses by an injured claimant to those expenses actually paid or incurred by or on behalf of the claimant.  A number of appellate decisions have addressed what this paid-or-incurred language means in different contexts.  The opinion in Katy Springs Manufacturing, Inc.

I have been waiting and watching for post-Haygood opinions, and the Amarillo Court of Appeals delivered a great opinion this week with Henderson v. Spann.  In a 2-1 opinion, the panel held that the trial court’s admission of unadjusted medical bills and exclusion of adjusted medical bills constituted reversible error even though the trial court

In prior posts, Byron Henry and I have opined on a split among the intermediate courts of appeals regarding whether 41.0105 of the Texas Civil Practice and Remedies Code abrogates the collateral source rule and whether evidence of medically expenses initially incurred but ultimately written off should be excluded from evidence at trial or applied post-verdict by the trial court.  The Texas Supreme Court resolved both issues today in an opinion affirming the Tyler court of appeals’ judgment in Haygood v. Garza

The main take-away is that amounts written-off by providers must be excluded from evidence at trial.  In other words, the jury should only see evidence of medical expenses actually and ultimately charged to the claimant, not bills showing initial charges before required write-offs.  The majority opinion may be found here.  Justice Lehrmann’s dissent, in which Justice Medina joined, may be found here.

 Additional take-aways you need to know before your next trial, however, are below:


Continue Reading 41.0105 Debate Resolved — Hooray!

The El Paso Court of Appeals issued an opinion this week that addresses, in part, application of Civil Practice and Remedies Code Section 41.0105.  There are two takeaways from the Section 41.0105 discussion.

First, the El Paso court joins the  majority of intermediate appellate courts in Texas holding that 41.0105 should be handled post-verdict. Frontera Sanitation, LLC

Over the summer, Byron Henry and I wrote an article discussing the emerging majority rule in Texas for applying section 41.0105, the paid vs. incurred rule for medical care expenses.  Our goals were two-fold: (1) to update the appellate bar on the current state of the law on this issue and (2) to provide suggestions for how to deal in practice with various pitfalls we see with the emerging majority rule.  Byron and I have practiced on both sides of the docket, so we did not intend those suggestions to be defense-oriented.  Rather, as appellate practitioners, we have seen how the current majority rule is inherently flawed in practice and creates dangers for plaintiffs and defendants alike.

Byron and I felt the topic was especially timely because the Texas Supreme Court had recently granted the petition in one of the cases emerging in the majority — Escabedo v. Haygood, 283 S.W.3d 3 (Tex. App.—Tyler 2009, pet. granted).  The Court heard argument on September 16, 2010.

We received a good deal of positive feedback after the article was published in the Appellate Advocate.  But we also heard concerns from some that our article could influence the Texas Supreme Court’s decision in Haygood to the detriment of Petitioner.  I was humbled to think an article I was involved with could have such an impact, but I was also excited to be part of a timely and important debate that will impact how we all practice.

Following the Haygood argument, John Gsanger and Paul Gold prepared a response to our article, which was published in the current edition of the Appellate Advocate.  Byron and I would like to briefly reply to that article here.


Continue Reading Section 41.0105 — The Debate Continues

In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation.  In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages