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Trap 7: Defense Lawyer Trick: Claiming Plaintiff Can’t Recover For TBI if Can’t Stop Treating

Brain Injury Lawyers Can Beat Tactic with Past Tense Language in Closed-Head Injury Exception

There is one particularly nasty trick that Michigan insurance companies and defense lawyers use to keep car accident victims from receiving any compensation for a traumatic brain injury suffered in an automobile accident. They will point to certain language in MCL 500.3135 and Kreiner v. Fischer and suggest that in order to recover, the plaintiff’s traumatic brain injury cannot resolve and the plaintiff cannot ever stop treating for his traumatic brain injury.

This is absurd.

According to most medical literature, about 85 percent of people who suffer from traumatic brain injury recover within two years — well before most litigation has concluded. And even if an auto accident victim does not recover within this time frame, it’s common for treatment to end once the plaintiff’s insurance company cuts off payment for any medical bills related to the traumatic brain injury. Insurance companies often use notorious doctors who never find anyone disabled or needing further treatment.

The Present Tense Requirement

The closed-head injury exception in MCL 500.3135 says that a question of fact for the jury is created if a properly qualified doctor “testifies under oath that there may be a serious neurological disorder.” Kreiner v. Fischer interpreted the law as requiring the plaintiff to demonstrate how the injury “affects the person’s general ability to lead his or her normal life.” Defense attorneys will use this language, as well as the “course or trajectory” language from Kreiner, to argue that an injury must have a present and continuing impact before recovery is allowed.

If this argument works, insurance companies can get out of paying for up to 85 percent of damages related to traumatic brain injuries, plus any injuries that “resolve” once personal injury protection (PIP) benefits are cut off and the treating doctor stops seeing the plaintiff.

Responding to the Present Tense Argument

The best way for Michigan traumatic brain injury lawyers to respond to the present tense argument is to fight fire with fire. If the defense focuses on present tense language in MCL 500.3135, plaintiffs can remind the court that there is also past tense language: 3135(1) allows recovery for non-economic loss if the person “has suffered … serious impairment of body function…” If the defense focuses on the present tense language in Kreiner, Michigan TBI attorneys can point to the Court’s language of MCL 500.3135, “an injury need not be permanent.”

The language in Byer v. Smith is also useful for overcoming the resolving injury argument. It says once a plaintiff has established a serious impairment, “he may maintain an action for non-economic loss.” Courts should not refuse recovery for an injury after it has ceased to be serious.

Traumatic Brain Injury Lawyers of Michigan Auto Law

Michigan Auto Law partner Steven Gursten is a member of the American Association for Justice Traumatic Brain Injury Group and lectures on traumatic brain injuries throughout the country. If you are an attorney and would like to refer a Michigan traumatic brain injury case, please contact Michigan Auto Law.

If you or someone you know has suffered a traumatic brain injury as a result of a car or truck accident in Michigan, our TBI lawyers can guide you through the complicated requirements of Michigan’s closed-head injury exception and help obtain the insurance benefits and pain and suffering compensation you need. Because our lawyers have been handling traumatic brain injury cases for more than 50 years, we understand the physical, emotional and psychological hardships that TBI victims experience from automobile accidents. Please call Michigan Auto Law at (877) 758-6578 for a case evaluation with no fee or obligation, or fill out our free consultation form.

Did our Michigan traumatic brain injury lawyers answer all of your questions about this insurance lawyer trick? If not, please contact us and we can help.

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