TOV Injury and Safety Blog

Eleven-year old with multiple fractures can't sue the drunk

In Cottrill v. Craig Kenneth Senter, two judges of the Court of Appeals recently held that an injured eighth grader could not sue the drunk who crossed the center line and hurt him.  The two judges ruled that even though there wer intimations of a head injury, and proven evidence of a fractured wrist, comminuted fracture of bones in the foot, and fractured ribs, the minor plaintiff had not alleged a "serious impairment of bodily function."

The dissenting judge pointed out that the drunk (with a .30 blood alcohol) caused the boy to miss two months of eighth grade and two full seasons of football, along with enduring several months of inactivity and an episode of difficulty breathing resulting from the multiple rib fractures.  He was still experiencing residual chest pain and had gone a full month without weight-bearing, along with needing attendant care for several weeks.

The two judges who dismissed the case determined that young Cottrill's injuries "did not change the trajectory of his life," applying the Engler Majority's Kreiner standard of "serious impairment."  The majority opinion pointed out, a propos of the latter conclusion, that the boy testified "he did not expect [his rib pain] to continue much longer."  We are glad to hear that an eleven-year old's anticipated prognosis for his own injuries is now admissible on the subject of "serious impairment."  Clearly the standard of intellectual analysis and discourse in our judiciary is becoming elevated.

Court decides ambiguity in medical chart against injured plaintiff: "no serious impairment"

In Patreka v. Brandi Cordle, et al., the Court of Appeals upheld the lower court's decision that Patreka had not suffered a serious impairment, even though she claimed that she was off work for nearly two years, pursuant to doctor's orders.  Patreka alleged that her motor vehicle injuries disrupted her social life and domestic duties, and also that her doctor had kept her off work through February  of 2005, when the doctor entered this note in her chart:  "I have given the patient a note that she continues to be unable to work."  In 2004, the doctor had charted "I have continued to keep the patient off work."

Stunningly, the lower court and the Court of Appeals decided these statements did not create a question of fact with regard to whether the doctor had restricted Patreka's return to work.  Both suggested that the statements were only documentation of Patreka's choice not to return to work and that Patreka had not met her burden of demonstrating physician restrictions that constituted a serious impairment of bodily function.  Because she had not proved a "serious impairment", Patreka's case was dismissed and she was not allowed to collect any non-economic damages from the at-fault driver.

Reading between the lines of the opinion, it appears that there was a substantial question with regard to the objective manifestation of Patreka's injuries, and the Court engaged in the previous fictive analysis in order to achieve a result with which it was more comfortable.  There was probably a suspicion that if the doctor actually considered Patreka unable to work during this period, her attorney should have taken the doctor's deposition to confirm it.  Nevertheless, it is another example of how "bad cases make bad law" as the court turned to semantic gymnastics in order to dismiss a case it did not feel comfortable with.

Previously disabled injury victim can maintain "serious impairment" claim from second injury

Michigan no fault insurers have enjoyed a field day, summarily dismissing significant injury claims because they occurred to people who had already suffered a different, relatively serious injury.  This trend has been reversed somewhat, and the Tipton v. Lang decision helps to illustrate why.  The three Court of Appeals judges in Tipton unanimously pointed to prior decisions recognizing the relative importance of particular activities and bodily functions, where a broad range of activity or function has previously been lost.

Jury determines shoulder injury was not a serious impairment

In Regan v. Suchowolec, the Court of Appeals was asked to consider a jury's verdict of no cause action, denying Ms. Regan any recovery for her motor-vehicle-accident-shoulder injury.  She claimed that the trial court should have directed a verdict in her favor and not allowed the jury to decide the issue.  The Court of Appeals rejected her request, holding that her claims, particularly her description of pain and interference with life activities, were questions of fact and credibility and properly decided by a jury.

Doctors explain recovery from ICU is often lengthy and ultimately incomplete

A series of studies underway at leading medical institutions point to the conclusion that ICU patients leave the ICU with significant residual problems.  Doctors involved in ICU care report that patients, even young ones, may be physically weak and/or emotionally and intellectually debilitated for years after even a short stay in ICU.

Federal Court limits punitive damages to 1:1 ratio; "bad faith" award against insurer reduced

Many states allow punitive damages in order to punish inappropriate behavior and in an attempt to enhance safety.  Michigan allows punitive damages in very few isolated situations, with little real public policy consideration.  For example, Michigan allows "treble damages" for wrongful tree cutting and allows 12 percent punitive interest when some insurance payments are wrongfully delayed.  Other states have a more comprehensive approach to punitive damages and the U.S. Supreme Court has recently indicated a willingness to strike down punitive damage claims.  The Alaskan oil spill, for example, resulted in a punitive damage award against Exxon that was ultimately reduced to a few weeks of oil profits after 19 years of litigation.

The lame-duck Supreme Court wrestles with a second-injury serious impairment

Justice Taylor will be gone from the Michigan Supreme Court in less than a month, and with him goes the majority he relied upon to raise the threshold for demonstrating a "serious impairment of bodily function" in the Kreiner case.   In essence, Taylor grafted a "life-altering" test on top of the legislative language defining a serious injury. On his way out the door, however, Taylor took one more swing at injury victims, in an attempt to bar motor vehicle accident claims.  In Benefiel v. Auto Owners, Taylor and his short-lived majority overturned a Court of Appeals' panel's decision that injury victim Benefiel suffered a serious impairment in the [second] motor vehicle accident where he was injured. 

Wrongful death "cap" on non-economics does not limit household service expenses

More than a decade ago, the Michigan Legislature adopted limits  (or so-called "caps") on the amount of damages an injury victim could recover for non-economic damages in some cases.  Medical malpractice insurance companies have aggressively used these "caps" to limit the recovery of malpractice victims:  among other successes, they have persuaded the Supreme Court to apply the "cap" to wrongful death malpractice claims.  The Defendants in Thorn v. Mercy Memorial Hospital attempted to go one step further:  they persuaded the local court to rule that the household services previously provided by the malpractice victim could not be collected by her family.  They also argued that household services were collectible, the household service expenses should be considered a "non-economic" damage and reduce or eliminate the other damages recoverable for pain and suffering or loss of society and companionship under the cap.

Dismissal of "serious impairment" claim upheld on appeal

The Saginaw case brought by Julie Garcia against the driver who injured her, Dale Doyle, was dismissed in the trial court.  The Court of Appeals upheld the dismissal, finding that Ms. Garcia did not satisfy the Taylor Supreme Court's Kreiner standard of "serious impairment".  Ms. Garcia suffered a fracture of her seventh cervical vertebra.

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

The most recent "serious impairment" decision

Farm Bureau, an insurer that has been particularly aggressive in resorting to the Courts to deny coverage purchased by its policyholders, lost its most recent appeal.    Its insured, Awada, had bought uninsured motorist coverage from State Farm, and attempted to avail himself of the coverage after being injured in a car wreck.  Under the terms of the policy, he had to prove a Kreiner "serious impairment" to force Farm Bureau to compensate him for the damages caused by the at-fault driver.  Farm Bureau had convinced the trial court that Awada's claim should be dismissed summarily as not "serious".

The plaintiff was 67 years old.  He suffered a fracture of his left kneecap that was "comminuted", meaning that the bone fractured into many pieces.  The orthopaedic surgeon described what he found when he opened the knee as a "morselized" bone with "very little structural integrity between the bony pieces".  The surgeon wired together what he could and the plaintiff attended physical therapy for several months.  He could not take care of himself or his household for eight weeks.  After that time, he suffered "unrelenting pain" that interfered with his daily prayers and kept him from sitting, standing or walking for extended periods.  The Court held that he had created a question of fact regarding whether his was a temporary "serious impairment" and also noted that a jury could deem his surgical scar a "permanent serious disfigurement".  It reversed the decision of the trial court and sent the case back to the lower court for a jury decision.

Accident victim with fractured humerus does not have "serious" injury

This week, a panel of the Court of Appeals concluded that the 13 year-old passenger could not recover for injuries she suffered when her car was struck broadside by a vehicle that ran a red light.  The young woman is right-hand dominant, and suffered the fracture in the large upper bone of her left arm.  It was treated with a splint and pain medication.  She remained in a splint for 3 months and required attendant care assistance for that period.  Within a month, her doctor recorded that she had minimal pain; and at two months, she reported no pain in the arm.  When the splint was removed, she was cautioned against heavy lifting for four weeks and required no further care, although her attorneys contended that she had to use a sling occasionally when she experienced discomfort.  She was told to stay out of recreational sports for a year or two, but she had never participated in any organized sports prior to the injury.  She claimed an inability to engage in heavy cleaning activities, however, the medical record did not support this limitation after the four week recovery from being splinted.  On this basis, the Court of Appeals concluded that she did not meet the Kreiner standard of "serious impairment of bodily function" as the restrictions on her activity level were, for the most part, self-imposed.  Self-imposed restrictions, the Court said, whether based on real pain or perceived pain, are not sufficient to establish a residual impairment.

Excellent "serious impairment" decision interpreting Kreiner

In a sign that the recent forced retirement of Justice Taylor will relax the unrealistic "serious impairment" standard that he had fostered, a recent decision by the Court of Appeals arrived at a common sense conclusion regarding the "seriousness" of an innocent motorist's injuries.  In Nassar v. Bazzi, the Court noted that while the injured man's career as a cook was not seriously disrupted by his shoulder injury, "his normal life" was affected [quoting the statute].

Nassar could not lift his arm to its full range of motion, and he had been advised by his doctor to limit all strenuous activities, particularly those involving the shoulder.  As a result, he could not golf, play catch with his grandchildren, perform yard work, coach basketball effectively, play volleyball or basketball as he previously did, or run 2 to 3 miles per day.  The trial court had dismissed his claim, relying on some of the more restrictive language in Kreiner.  The Court  of Appeals reversed, noting that not every aspect of the victim's life must be disrupted to constitute a serious impairment.  The unrealistic suggestion in prior cases that activity-limiting pain is irrelevant was dismissed where the treating physician had instructed the victim to limit his activity according to his pain level.

Likely changes in the Kreiner "serious impairment" standard for auto injuries

The Michigan Lawyers Weekly re-stated the obvious this week, when it pointed out that Cliff Taylor's loss in the Michigan Supreme Court race likely dooms the current "life-altering" interpretation of "serious impairment of bodily function".  A person injured in a motor vehicle collision can only sue the at-fault if she or he suffers death, permanent serious disfigurement, or a serious impairment of bodily function. 

Justice Weaver, the Court's fifth Republican Justice, had dissented from Taylor's "textualist" re-writing of the no fault act, a re-writing that rendered the serious impairment threshold a greater impediment to victim's claims by imposing a requirement that the "serious" injury be "life-altering".  In the thirty-plus years after the no fault act was adopted in 1973, both the Legislature and the Supreme Court had rejected this kind of "catastrophic" threshold for bringing a lawsuit.  Since the new Justice, Diane Hathaway, had staunchly and publicly criticized the re-writing of the no fault threshold by Taylor, it appears all but certain that  she and Weaver will form part of a four-Justice majority, with Justices Kelly and Cavanaugh, espousing the philosophy of the Kreiner dissent and preserving the original statutory meaning.

Court denies summary disposition for "serious impairment" claim

In Branch v. Kravklis, a unanimous panel of the Court of Appeals denied the Defendant's Motion for Summary Disposition.  The Defendant sought a ruling that his negligence did not cause a "serious impairment of bodily function", given the Plaintiff's pre-existing medical history, however, the panel relied upon settled law to return the case for a jury decision on that complicated factual question.

No serious injury under Kreiner where man was already disabled

In Belt v. Maczynski, the Court of Appeals upheld the dismissal of a man's no fault injury claim, despite the Defendant's admission that he had sustained an injury that "affects a major life activity".  The Court did not explain what the injury was, but held that since the victim was already disabled from work and many activities, the additional limitations he suffered did not "significantly alter" his life. 

Michigan Supreme Court reduces malpractice death recovery

The MIchigan Supreme Court recently decided not to hear argument on the Young v. Nandi, et al., medical malpractice wrongful death case.  The Plaintiff in Young had obtained a jury verdict against his wife's doctor.  The insurers for the doctor and his practice had raised a number of appellate issues, most of which were dismissed by the Court of Appeals.  The Supreme Court upheld the fact of the verdict and rejected the Defendant's argument that  the higher cap on non-economic damages ($500,000) can never apply to a death case because "an estate can't suffer neurological damages".  Nevertheless, the Court also reduced the verdict to the lower cap ($280,000.00) because the wife might have recovered brain function and communication ability if she had ever recovered enough to be weaned from the respirator she was placed on after the Defendant's malpractice.  That's right--her neurological dysfunction arising from being sedated and ventilated  (placed in a coma, in other words) was not "permanent" because if she hadn't died, she might have improved.

The Court is currently split, with 3 Republican activists arguing that a dead malpractice victim should always be limited to the lower ($280,000) cap on non-economic damages.  The four remaining justices essentially believe that at a minimum, a person suffering permanent, serious neurological injury before dying--which would qualify for the higher cap--retains the right to recover the higher cap even if he or she later dies prior to a verdict being rendered.

On the bright side, the entire  Court rejected all of the insurer's additional arguments of error except its claim that a hearing must be held to determine the proper award of attorneys fees to the Plaintiff arsing out of the Defendant's rejection of case evaluation.  The Court dismissed for a second time an insurer's claim that the victim's failure to schedule a hearing on the victim's Blue Cross medical expenses within 10 days of the verdict relieved it of paying  for those expenses. The Court noted that Blue Cross had been advised of its lien and the purpose of the statute had been served. (Basically, the Defendants wanted to force the victim to pay Blue Cross for the treatment the Defendant's negligence had caused, out of the victim's $280,000.00 non-economic recovery.)

The Court of Appeals upholds another "serious injury" verdict; rejects "sudden emergency" defense

Insurers are aggressively pressing the appellate courts to throw out jury verdicts in favor of seriously injured victims with the argument tha reasonable jurors could not possible find the injuries suffered were "life-altering" as an activist Supreme Court majority recently re-defined "serious".  They also seek permission of the court to instruct the jury on "sudden emergency" whenever there are winter weather conditons--no matter the circumstances. 

Another decision on "serious impairment"

In Richmond v. Stroup and Long-Stroup, two Judges of the Court of Appeals reversed the trial court's decision summarily dismissing Ms. Richmond's injury claims.  She had sued the at-faults in a motor vehicle accident after suffering a fractured wrist, a fractured ankle and a fractured rib.  Although she missed several months of work, endured a number of months of therapy, couldn't sleep on the sore rib cage, was casted from January to November of 2006, and used crutches until October, the trial court had deemed her injuries not to be a "serious impairment". 

Study warns that trial often results in disappointment

We don't accept some of what was written in a recent study published by the Journal of Empirical Legal Studies, however, it does embody an appropriate caution regarding the risk associated with trials.  The study evaluated more than 2,000 cases and concluded that the parties would usually have done better if they had accepted the last settlement offer, rather than holding out for a verdict.  The study claims this was true for plaintiffs about 60 percent of the time.

Exxon Valdez damages slashed by Supreme Court

As anticipated by experts who observed the oral argument before the Court, a bare majority overturned the punitive damage award against Texas-based Exxon arising out of the nearly twenty year-old fuel spill that dumped 11 million gallons of oil into Prince William Sound.  The jury had awarded 5 billion dollars in punitive damages, and the Circuit Court of Appeals had already cut that number in half.  Putting the latter number, 2.5 billion dollars, in perspective, it represents only a few weeks' profit for the oil giant and the spill fouled about 1100 miles of coastline, causing an environmental and commercial catastrophe for 33,000 residents who sued. 

The five Justices who constituted a majority of the Court limited the punitive damages to 500 million dollars--the amount paid to compensate victims for economic losses.  Commercial fisherman, landowners, businesses and local governments who suffered injury will receive, on average $15,000.00 for their trouble. 

Michigan courts do not allow the jury to award punitive damages in most negligence cases, no matter how  "reckless" the defendant's conduct.

The Court of Appeals struggles with Kreiner standard

  A recent decision in Anderson v. Alexander helps to illuminate the struggle involved in interpreting the Kreiner case, while also attempting to do justice to an injury victim.

Judge Saad strikes again: 16 year-old bitten by a pit bull gets no compensation for pain

Judge Saad, a Robert Bork wannabe on Michigan's Court of Appeals, has consistently proferred interpretations of the law that favor insurers and take rights from citizens and consumers.  In his most recent decision, he joined with another judge to hold that a young girl who was bitten by a pit bull in an unprovoked attack could not identify for the jury the breed of dog that bit her, and could not appeal the jury's decision that she should recieve no compensation for pain and suffering or mental anguish.

Fifteen million dollar damage award upheld; discussion of race questions in jury selection

A recent case against an airport shuttle operator provided insights into the operation of damage claims where there is a "deep pocket" who has admitted fault.  It also addressed questions of race in the context of jury selection, and the threshold for proving head injury under the no fault law. 

Fracture at C-7 is not "serious"

State Farm successfully defended Erik Lundquist's injury claim on the basis he did not suffer a "serious impairment of bodily function" when he suffered a fractured vertebra in his neck.

19 years, 3 weeks' lost profits, and a slap at victims by the Supreme Court?

     Observers of this week's argument before the U.S. Supreme Court over the massive oil spill caused by the Exxon Valdez warned that a majority of the Justices appeared willing to further reduce the punitive damage award against Exxon.

Fight over serious impairment and insurance surveillance "gamesmanship"

      In Laukkanen v. Jason, the injured Plaintiff secured a verdict against the driver who rear-ended her at a stop light.  Plaintiff worked as a physical therapist and had to undergo substantial medical treatment after the collision.  MRI and EMG testing showed abnormalities consistent with her accident-injury claims, and she endured having to wear a back brace, physician-restrictions on her activities, numerous medical therapies including orthopaedic manipulation, and physical therapy.  She provided extensive evidence supporting the limitations on her normal work duties and life activities.  Despite this evidence, the insurer claimed she did not suffer a "serious impairment of bodily function", and asked the Court of Appeals to set the verdict aside. 

     Not only did the trial court and the Court of Appeals reject the insurer's claim of no serious impairment, it also upheld the trial court's refusal to countenance the Defendant's "gamesmanship" in secretly taping the Plaintiff and then lying about it.  The Court had required both sides to disclose their evidence months before the trial (a standard scheduling order) and the Plaintiffs had also filed motions to compel the Defendants to produce any surveillance evidence.  The Court criticized the Defendant for lying about the existence of this evidence, failing to produce it for more than four months, and producing other photographic and video evidence without producing the hidden surveillance until a few days before trial--too late for the Plaintiff to examine the evidence or respond to Defendant's arguments about what it showed. 

     The Court held that the trial court did an excellent job of carefully considering the circumstances  of the Defendant's "gamesmanship" and blatant violation of the court's discovery rules.  The Appeals Judges felt that excluding this imporper evidence was a proper exercise of the trial court's discretion and refused to overturn its decision.

Serious impairment and a Michigan soldier

A no fault insurer recently avoided paying compensation to a soldier who was partially disabled for 18 months after a motor vehicle collision, claiming that her injuries were not a "serious impairment".

ERISA Health plan liens

        Many consumers don't realize that if they recover damages for a serious injury, they will probably have to re-pay their health insurer (if they are fortunate enough to still have health insurance) for its out-of-pocket expenses.  This is a completely logical rule and a reasonable response to the high cost of medical care, but the right of reimbursement or subrogation has been taken to an inappropriate extreme by some insurers and courts.

        Historically, the right to be reimbursed was enforced through a legal principle called "subrogation".  If the injury victim had a right to recover for his or her injuries from the at-fault person, that right to collect is transferred to the insurer who actually paid the medical expense.  The health insurer's rights were exactly coextensive with the injury victim's rights, and if any money was collected, the insurer was obligated to pay its share of the related fees and costs necessary to recovery from the at-fault.  The Courts have allowed "reimbursement"  of medical expenses in this manner from the victim's entire recovery, whether the recovery is called wage loss, pain and suffering, a even a spouse's consortium.  Many companies such as Blue Cross-Blue Shield continue to write their contracts to follow these principles, and many insurers will agree to cover their share of fees and expenses, even if their plan does not obligate them to, in order to encourage the victim to seek compensation and share in the recovery.   Historically, a frequent compromise position has involved an agreement between health insurer, victim and counsel to share severely limited resources on an equal, one-third each, basis.

        As medical expenses have made their phenomenal rise and caused a greater hardship for employers, the Courts have begun to recognize an increased right in health insurers to be more aggressive in writing contracts to give the insurer a more extensive right of reimbursement.  Many contracts are now written to allow the health insurer--particularly if it is an employment-based ERISA plan--to recover the entire cost of medical expenses, regardless of limits on the victims' recovery and without sharing in the related legal fees or expenses.  Under these rules, for example, if a wrongdoer has only limited insurance available, or only limited ability to pay for his mistake, the entire recovery to the victim may belong to the health insurer--even if the result is one hundred percent recovery for the insurer and no compensation to a catastrophically injured victim for lost wages, future medical expenses or suffering or loss of quality of life.  This is a far cry from the more nuanced and balanced approach that had been the rule of law.

          The right of an insurer to seek "repayment", "reimbursement" or "subrogation" is usually defined in the employee's Summary Plan Description and more fully in the underlying contract.  If the SPD is not clear on this point, attorney and victim can check the insurer's Form 5500, which is available to the public, or demand a copy of the relevant language from the Plan Administrator under 29 U.S.C. 1024(b)(4).  Various federal circuits have disagreed, but Michigan law is controlled by the Sixth Circuit which currently holds that if an ERISA plan does not provide otherwise, the "default" rule is the "make whole" doctrine, which allows subrogation only where the victim's recovery includes his or her own loss and insurer-paid medical expenses.  Needless to say, most insurers have adequate legal support to assure the most aggressive grab and do not fall in to the "default" category.   If the write their contract to entitle themselves to complete repayment without sharing in fees or costs, the victim's right to wages, future medical expenses, or non-economic damages may be waived even before the catastrophic event.

Pain and sleep

        The New York Times reported on October 23, 2007, that a sleep researcher from the Johns Hopkins School of Medicine had conducted a new study that shed light on the relationship between pain and sleep.  Michael Smith explained that three groups of healthy young students were subjected to variable amounts of sleep disturbance or deprivation.    He found that "fragmented sleep" led to severe impairments the following day in pain pathways.  The subjects "felt pain more easily, were less able to inhibit pain, and even developed spontanteous pain" such as mild backaches and headaches. 

        Timothy Roehrs, director of sleep disorders research at the Henry Ford Hospital corroborated these findings in a separate study of fragmented sleep, and also demonstrated that "getting more sleep...had the opposite effect."  Study participants in the sub-group who stayed in bed a minimum of ten hours per day demonstrated reduced sensitivity to pain "to the same degree as [if they had taken] a tablet of codeine".

Severe injuries, pain and depression

An April, 2007, study by the University of Michigan Health System documented some of the connections between pain and depression.  The study noted that people suffering from severe pain are at high risk to suffer severe depression, as well.  We have observed this same phenomenon over several decades of injury practice and we have documented it with many of our clients' treating physicians.  The U of M study goes a step further to quantify the problem. 

The researchers at U of M noted that depression is often caused by chronic pain, alone.  In addition, inability to participate in physical activity, inability to maintain fitness levels and general deconditioning all contribute to cause depression or to make it clinically more severe.  Jarring life transitions resulting from injury and financial concerns also can contribute.  None of this is rocket science or jarring, but it is good to see the problem documented and confirmed in a reliable way.

The existence of depression is a complicating factor in healing and coping, as well.  The U of M study documented that people reporting moderate to severe depression were 11 times more likely to report that they are experiencing difficulty sleeping.    They are also likely to experience injury to social relations and loss of social support, difficulty with alcohol or drug use, difficulty with maintaining even a part-time job, and difficulty with fitness, weight control and hygiene.

If you or a loved one has experienced a severe injury, please be alert to the symptoms of anxiety and depression.  If you observe them, discuss them with the care givers to assure that the medical problems experienced by the patient are not compounded by clinical depression.  Over the years, we have observed a number of our clients who were very severely injured--particularly men--but who refused prescription drugs for depression in the following months.  Eighteen months to two years later, many of them were willing to acknowledge that their overall recovery and well-being was delayed as a result, and that their pain control and emotional health did not gain momentum until they began taking anti-depressants and re-establishing healthy sleep patterns.