The published Michigan Court of Appeals ruling for Netter v. Bowman was overruled by the Michigan Supreme Court in McCormick v. Carrier.
Michigan automobile accident TBI victims can still recover after Netter v. Bowman for brain injuries that are not confirmed by objective testing.
Victims of traumatic brain injury, brain injury advocates, Michigan personal injury lawyers and attorneys and doctors throughout Michigan who provide care to people who suffer from traumatic brain injury are wondering if the recent appellate case of Netter v. Bowman eliminates the right to sue for victims of traumatic brain injury suffered in car accidents in Michigan. The answer, despite what many Michigan attorneys seem to believe, is that victims of brain injury can still sue under Michigan law even when their brain injuries are not subject to medical measurement or confirmed by objective diagnostic testing.
The concern of many Michigan lawyers helping people with brain injury and of the Michigan brain injury community is that the case of Netter v. Bowman has eliminated the rights of the brain injured in Michigan to seek compensation for head injuries from auto accidents. This concern focuses on whether victims of brain injury will be able to meet the requirement of “objective manifestation” for their brain injury. Under current Michigan law, an impairment or injury must be “objectively manifested” in all automobile accident injury cases. As a closed head injury by definition is not “visually apparent” and as the majority of mild to moderate traumatic brain injury cases are not subject to medical measurement, the concern is that victims of brain injuries will now fail to qualify under the new definition of “objective manifestation” after Netter. Without showing that an injury is “objectively manifested,” an auto accident victim will be unable to have a successful car accident injury case under Michigan law.
This concern is misplaced, for several reasons.
The first is that car accident victims in Michigan who have suffered a brain injury are not required to prove an objective manifestation of brain injury. Under MCL 500.3135(7), also commonly referred to as the “closed head injury exception” by Michigan attorneys, a plaintiff injured in an auto accident claiming a traumatic brain injury need only present evidence from “a licensed allopathic or osteopathic physician who regularly diagnosis and treats closed-head injuries [and who] testifies under oath that there may be a serious neurological injury” in order to get to a jury. MCL 500.3135(2)(a)(ii).
The reason for the closed head injury exception for automobile accident victims with brain injuries under Michigan law is precisely because it is widely recognized that a person can have a very serious, even permanent and disabling brain injury without any positive diagnostic testing that confirms it. Hence the exception under Michigan law to the normal requirement in the statute that all car accident victims be able to show that their auto accident injuries are “objectively manifested.” It would make no sense otherwise to have a clear exception under the closed head injury exception for brain injury victims to be able to get to a jury if the jury would still be required to find an objective manifestation before it could award damages. This was the exact point of the appellate case of Guerrero v. Smith, No. 268477 (2006) which found the trial court erred in requiring a jury to apply the objective manifestation test to a closed head injury car accident case.
Michigan car accident victims who suffer a traumatic brain injury will still be required to meet the two remaining requirements under the Michigan law of serious impairment of body function i.e. that the impairment be to an important body function and that the injury affect the person’s ability to lead his or her normal life. The use of one’s brain, memory and concentration, etc. will always be found an important body function. This leaves the final test of lifestyle impact for victim’s of brain injury under Michigan law.
It should be noted that under Michigan law, neuropsychological testing may suffice as an objective manifestation of a traumatic brain injury, even if the new definition of objective manifestation from Netter were to apply to brain injury victims. See Shaw v. Martin 155 Mich. App 89 (1986). Also, there have been important new advances in brain imaging, such as PET, SPECT and other more sophisticated diagnostic testing that can show brain injury even when the MRI or CT scan of the brain is normal. All these tests should be carefully considered by a physician and attorney helping a brain injury victim. Even if the requirement to show the “objective manifestation” is not required under Michigan law, actual proof of the traumatic brain injury in these cases is always helpful for doctors, lawyers and juries. For example, often a psychiatrist will order a PET scan of a person who they suspect has a brain injury because they need to know, in order to treat that person successfully, if the symptoms that patient has are from an organic brain injury or if they are acquired psychiatric and emotional problems from dealing with pain from a traumatic event such as a car accident.
Netter v. Bowman was released in September, 2006. The Netter Court, in interpreting the definition of objective manifestation under Michigan’s auto accident injury law, defined objectively manifested as “that a plaintiff’s injury must be capable of objective verification by a qualified medical person either because the injury is visually apparent or because it is capable of detection through the use of medical testing.”